After I had filed the first motion, however, Erinn Larkin contacted me and offered her assistance for the next stage of my suit.
Well, I took Erinn up on her generous offer.
Today, I filed a “Motion for Reconsideration” – it’s just what it sounds like it is. I basically asked the judge to reconsider denying me the photos. So I had to give him some better reasons to give me the photos, and that’s where Erinn comes in.
Erinn’s affidavit, which is a written statement that’s signed under the penalties of perjury, provides evidence that I want the judge to look at while reconsidering whether I should have the photos.
In the text of the affidavit itself (i.e., without the Exhibits), Erinn relates an anonymous source’s description of the ACTUAL PHOTOS – this source saw the photos, took notes, and related the info to Erinn.
Then there are the exhibits to the affidavit – documents that Erinn attached to it.
The exhibits include:
Never before seen pictures of the Saturn, including pictures taken inside the Saturn, that were included in the Black Box Report, which Erinn did a two-part podcast on, as well as some interesting text from the report describing the pictures. That’s in Exhibit A to her Affidavit.
The actual false tip emailed to the Cold Case Unit and the Murray family this summer. This false tip included a fake confession that was apparently made using photoshop. The judge denied me the photos partly because he was afraid that after the photos were released to the public, someone could change them using photoshop to make more false tips. That’s in Exhibit B to her Affidavit.
I just want to note that I personally have not drawn any conclusions – good or bad –about police conduct in Maura’s case in light of Erinn’s Affidavit.
I have never EVER theorized that Cecil Smith had anything to do with Maura’s disappearance, and even in light of Erinn’s affidavit that is not a conclusion I draw.
Having said that, I trust that the information Erinn provided is accurate and, although I don’t know the identity of her confidential source, I know that because Erinn says the source is trustworthy, the source is trustworthy. Period.
Thanks for your indispensable help on this Erinn.
I look forward to the discussion that will come from this.
Due to to confusion, I have been asked to emphasize that the “false tip [that] included a fake confession” referenced above was fake.
In January 2006, Fred Murray went to the Grafton County Superior Court to obtain the case files relating to Maura’s disappearance. When his request was denied, he appealed to the New Hampshire Supreme Court. Although the court also denied his request, they did require the state to explain further about the nature of the evidence in their possession. The following are my “non-expert” observations from reading the documents available from this proceeding as well as listening to available hearings from the NH Supreme Court, and the 107 Degrees Podcast episode 3.
VERY QUICK BACKGROUND ON THE PROCESS
I am not a lawyer so I will try to start with a brief “easy to understand” overview of the process for obtaining information. New Hampshire has a “Right-to-Know” Law (RSA 91-A) that functions in conjunction with the federal Freedom of Information Act (FOIA). All of the FOIA provisions also apply to the New Hampshire law. The New Hampshire law has exemptions that center around personal privacy – in other words you can’t obtain someone’s school records, bank records, and other types of personal/confidential information. Those exemptions alone would not go far in denying Fred’s request for information. However, “FOIA” has a key clause 7A exempting materials that could interfere with an ongoing investigation, specifically:
“… to the extent that production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings.”
In the end, Fred’s request was denied partly because it contained some of the personal information exempted by the New Hampshire law. But his request was largely denied due to the FOIA exemption 7A. What does this mean? It means that they argued that it was an ongoing investigation and one that had a “reasonable likelihood” of leading to an enforcement proceeding (“reasonable likelihood” was determined to be the operative legal standard).
RSA 91-A and FOIA:
New Hampshire Right to Know (RSA 91-A) exemptions:
Building on that background on RSA 91-A and FOIA, the following are my “Top 10” surprises or takeaways from reading the materials from the materials obtained through Fred’s legal case aka Frederick J. Murray v Special Investigation Unit of the Division of State Police of the New Hampshire Department of Safety et al.
1. THE MAURA MURRAY CASE FILE IS EXTREMELY LARGE
Maura’s case file appears to be a large one consisting of:
66 law enforcement personnel narratives
106 witness interviews
19 written witness statements
3 transcribed witness interviews
The online community has noted any number of gaps in the State’s investigation. We can either conclude that their investigation has not been thorough OR that we are not understanding the focus of their investigation.
2. THE DOCUMENTS MENTION A GRAND JURY
At this point the notion of a grand jury in this case is fairly well known. Art Roderick has told us that there were at least two grand juries that were “investigative in nature”. However, we first learned of the existence of some form of grand jury process from these documents which state – among other citations: “There are Grand Jury subpoenas that are not public and which would pinpoint the focus of the investigation.”
We know a Grand Jury was held prior to April 2007 due to the record of a hearing on the Fred Murray matter on April 13, 2007 and subpoenas submitted as early as March 15th. We can also reasonably conclude that there was no indictment coming out of any grand jury in this case. Some legal experts have stated that the function of a New Hampshire grand jury is to indict an individual in a criminal proceeding and thus, it seems unusual or improbable that these would be investigative in nature.
3. THE INVESTIGATION IS OVERWHELMINGLY FOCUSED ON NEW HAMPSHIRE
Although this is hardly breaking news, it is worth pointing out that – if we go by the affiliations of the law enforcement personnel – the investigation centered on New Hampshire. In other words, it was not national, it was not international. The investigation only tangentially ventured into other states (this will be covered in the next bullet). For what it’s worth, there is nothing in Oklahoma or Ohio or Canada or Florida or Tennessee – a few jurisdictions that have been discussed. The investigation in Massachusetts seems focused on Amherst/Hadley.
SUMMARY OF LE UNITS INVOLVED BY NUMBER
NHSP 44 (5 of these Major Crimes Unit)
Haverhill PD 9
UMass PD 7
Rochester PD 3
NH Fish and Game 2
Sullivan County DOC 2
Amherst PD 1
Exeter PD 1
Grafton County Sheriff 1
Hadley PD 1
Oxford County ME 1
4. THERE WERE SOME UNUSUAL JURISDICTIONS INVOLVED
Some LE units jump out as unusual although we are able to find explanations in most cases:
Rochester: this is accounted for by a sighting of Maura that “went nowhere”
Oxford County, ME: Oxford County Maine is where Bill went to check the hospital in Norway/Paris but this reference is still not fully understood or explained.
Sullivan County DOC.- there is a nearby Sullivan County in NH; Sullivan County in NY has a prison – but this is unexplained. Edit: confirmed to be the county in NH (site of Goshen, etc.).
5. THE STATE LISTED 20 CATEGORIES OF EVIDENCE
To respond to Fred, the State provided a page with 20 categories of evidence. (See the documents for the full description of each of these categories)
Subpoenas (including search warrants)
Credit card information
Criminal record checks
Narrative reports by investigators
Witness interviews (tapes and transcripts) – 19 written statements; 3 transcribed interviews
Polygraph examinations (4)
Possessed property reports
Policy/dispatch call logs
One-party intercept memoranda
Maps and diagrams
Investigative duty assignment (nothing in this category)
Employment personnel files
6. WHAT IS A ONE-PARTY INTERCEPT MEMORANDUM?
One of the more interesting details in the list of 20 is the “one party intercept memorandum”. We understand that this refers to either the wiretapping of a phone or someone “wearing a wire”. In New Hampshire, wiretapping is governed by RSA 570-A
But what is the “memorandum” noted? We find the answer to the memorandum question with the approval requirement specified in section II(d):
(d) An investigative or law enforcement officer in the ordinary course of the officer’s duties pertaining to the conducting of investigations of organized crime, offenses enumerated in this chapter, solid waste violations under RSA 149-M:9, I and II, or harassing or obscene telephone calls to intercept a telecommunication or oral communication, when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made unless the attorney general, the deputy attorney general, or an assistant attorney general designated by the attorney general determines that there exists a reasonable suspicion that evidence of criminal conduct will be derived from such interception. Oral authorization for the interception may be given and a written memorandum of said determination and its basis shall be made within 72 hours thereafter. The memorandum shall be kept on file in the office of the attorney general.
In other words, if a law enforcement officer wants to record someone, they must get prior approval in the form of a memorandum. That said, the memorandum noted in Maura’s case would seem to give LE approval to go forward with recording someone. However, we don’t know if it was executed and we don’t know the target.
7. THE ATTORNEY FOR THE STATE INDICATED THERE WERE SUSPECTS UNDER CURRENT INVESTIGATION
Despite telling us “we can’t rule out that Maura may have left at her own volition” we do learn that there are suspects currently under investigation:
Prosecutor Nancy Smith … “revealing anything about Landry’s investigation, even in general terms, might identify suspects from a small community …” … “The people – the identity of those people is fairly well known.”
Ervin: “Is the investigation into those individuals currently ongoing?”
What can we conclude from this? We might conclude that the investigation into this potential crime is focused on individuals currently (then) living in New Hampshire or in the broad vicinity of the accident site. I am not sure what to make of the “fairly well known” identities. Does this mean that they are known to their community or that they are the names actively discussed? We don’t know.
8. WHAT IS AN “ACTIVE INVESTIGATION”?
The State insisted that the case was an active investigation but provided little clarification as to what that meant. It was noted that there was a detective “monitoring the case each day” and that the records were “actively being used”. They discussed such things as “following up on leads”. To me the investigation sounded less than proactive but as we don’t know the nature and focus of the investigation we can’t draw conclusions.
9. THE PHRASE “WOULD PINPOINT THE FOCUS OF THE INVESTIGATION” IS USED CONSISTENTLY
The documents consistently note that revealing x or y would “pinpoint the focus of the investigation”. Because the phrase is used consistently, each specific usage seems to provide little insight.
10. 75% CHANCE OF WHAT?
Strelzin ultimately quashed Fred’s request by stating that there was a 75% likelihood of a future enforcement proceeding.
Q: You indicated in responding to Attorney Ervin that you could give him a percentage that you have in mind of likelihood. What is that percentage regarding likelihood of this results in a criminal case?
The question becomes: was Strelzin speaking in generalities about the likelihood of bringing “this type of case” to a criminal case or was he speaking specifically about the Maura Murray case?
According to Fred Murray:
“The judge asked the assistant attorney general what was the percentage of bringing charges, and he [Senior Assistant Attorney General Jeffrey Strelzin] rolls his eyes, looks at the floor and then says, ’75 percent.’ He pulled it out of his back pocket (ass),”
“My question now to the [assistant] AG is, what is 75 percent of nothing? You said 75 percent two years ago. You made that up. Nothing has happened,”
One poster on reddit summed it up as:
75 % chance of eventually having enough information to convict.
As in 75% of the time we get one of these cold cases, it works out.
Parts sold separately.
Some assembly required.
And another explains:
“Strezlin and company were trying to argue in generalities, because quite frankly, they were getting their butts kicked in court. The judges were not buying the reasons that police wouldn’t release the records because they hadn’t established that a crime had taken place by a long shot.
So instead, Strezlin and company turned to prosecutions in general. they brought up other cases (one was like 20 years old where they finally got a conviction) to show the court that since a crime can’t be ruled out in maura’s case, it is possible (no matter how much time passes) that they can still convict. so that is why they shouldn’t release anything to fred.”
I don’t think that it was an abstract number. The preceding question was “What is that percentage regarding likelihood of this results in a criminal case?”. At best Strelzin was playing on the ambiguity of the situation. According to one source, Strelzin bragged outside the courtroom that there was a 75% chance he would be filing charges – then turned his back when a grand jury failed to indict (no body). That’s hearsay but to me it has an air of truth.
I have been critical of the initial dog track that was done on Wednesday, February 11th. And although I still believe there is significant reason to question the validity and integrity of that process, in this post I am going to propose: what if it was accurate? I can’t concede that the track was absolute proof of anything, but it’s worth considering the evidence it would give – or negate – if it’s accurate.
On Wednesday, February 11th, 36 hours after the crash, a dog from the New Hampshire State Police was brought in to track Maura’s scent. The track was ultimately run about 39-40 hours after her accident on a “clean clear morning” with no fresh or additional snow since the accident. The wind speed was estimated at between 2 and 4 MPH – considered low (good) for tracking a scent as wind disperses scent particles. On the other hand, running a track after 39-40 hours, on a paved road with cars possibly dispersing the scent, is less than optimal.
The bloodhound ran the track twice. Both times the dog headed east and stopped down the road “within sight of the accident site”. This track has been quoted as being “under 600 feet” “100 yards” and “near Atwood’s driveway”. But on the Oxygen show, Todd Bogardus of the New Hampshire Fish and Wildlife, who was the supervisor in charge of Maura’s search in 2004 noted the dog track ended “at the intersection of Bradley Hill Road”. However, the subsequent illustration done on the show references “Butch’s cabin” and the end of Butch’s driveway.
It has been widely quoted that the dog stopped “in the middle of the road” but on the Oxygen show, Bogardus didn’t specifically state that the dog stopped in the middle of the road. I can only find the reference to the “middle of the road” in the Conway article. Tom Shamshak who worked with the New Hampshire League of Investigators also mentions “middle of the road” in an interview on the 10 year anniversary of Maura’s disappearance.
The NHSP dog was given a scent article – reportedly a leather glove that Maura had been given for Christmas. Fred and others were disappointed in this choice since it was a new glove that Maura may not have even worn. The best scent articles are items that are very “close” to the individual such as sweaty clothes, a toothbrush, shoes, underwear. Therefore, and given that there were many other items in the Saturn, the choice of an unused glove seems unfortunate at best.
Another problem with the scent article: it was reported by at least 2 witnesses that the door to the Saturn was open after police arrived at the scene on February 9th – with at least one witness reporting that police were “searching” the vehicle. This should at minimum give us doubts about the integrity of any article taken from the car.
It has been proposed that the dog was actually tracking Cecil Smith who went over to Butch’s home after arriving at the scene on 2/9. This is another reason it would be helpful to know the exact location where the dog stopped. It would, of course, also be helpful to know if Cecil was in Maura’s car on the evening of 2/9 and may have touched the glove.
On the other hand, the NHSP dog was affirmatively tracking something. The dog was not confused or meandering, did not give vague indicators and repeated the same track both times. John Healy of the New Hampshire League of Investigators (who was not involved in the case at the time of the dog track) notes that the initial track didn’t give us anything probative aside from possibly “… the direction she chose to walk in”. On the other hand, Bogardus the supervisor notes on the Oxygen show “… it’s possible she may have been picked up by a vehicle there”. [We should obtain the full transcript of his interview to determine if this was his ultimate conclusion, or just the clip shown on the show that didn’t represent all of his thoughts on the topic.] In any case, the lead supervisor of Maura’s 2004 search seems to believe it is possible or likely she went off in a vehicle.
Episode 8 of the 107 Degrees podcast featured an interview with Katharine Dolin, an Assistant District Attorney from Missouri. Ms. Dolin has not worked directly on Maura’s case but comments based on her experience: “… if the dog sniff died – which it sounds like – in the middle of the road, from my experience it’s much more likely that that person was put into a vehicle or got into a vehicle.” She notes that if (Maura) had walked to a home or trailer, the dogs would have tracked her there (to her final location) and not just stopped. She concludes “It sounds much more like she was transported from a vehicle from the area“.
This leads to one of the more puzzling aspects: why didn’t Butch see her? At this point we can’t assume he did or didn’t. We don’t know if he was a reliable witness. Some of us assume he was covering up for RF, but I can’t think of any plausible scenarios where RF picked her up in front of his house and drove her 10 feet into his driveway.
It is also important to underline this finding: the dog didn’t track her going up to someone’s door, or hiding behind a tree, or ducking in the woods. This may be one of the more important findings: we can’t simultaneously claim that the dog track lends suspicion to RF when it doesn’t lead up to his door or trailer. We really can’t have it both ways.
I’m skeptical of the initial dog track. I think there are many reasons to call it into question. But if it tells us anything, it seems to tell us that she got into a car. Maybe more importantly it does not support the theory that she walked up to someone’s door – at least not at that intersection.