The newly passed bipartisan Homicide Victims’ Families’ Rights Act is rooted in a well-intentioned attempt to address the anguish and damage to society caused by the failure to solve cold case murders, and to bring more resources to bear on cases stuck in time and trapped by agency group think and ego. https://www.foxnews.com/us/biden-signs-bipartisan-cold-case-law-establishing-federal-right-request-review-victims-families. The bill was introduced by two former prosecutors turned congressmen, who are well-versed in the pitfalls of cold case investigations. It is a recognition of the quickly evolving DNA and genetic genealogy technology that has become available, and which is too often resisted by old school law enforcement agencies who refuse to be brought into the 21st Century.
It also recognizes the obvious axiom that a cold case should be evaluated with fresh eyes and not by people tasked with reaffirming the actions or inaction of predecessors or keeping the case perpetually “open.” The law specifically prohibits previous investigators from leading a renewed probe. It also instructs agencies to keep families of murder victims informed of the case status. These are things that should be obvious to any real cold case investigator, but apparently only in make-believe land.
It also can be said to recognize the reality that the actions of an agency in a cold case investigation like the OCCK affect the reputation of law enforcement as a whole and that, as Dr. Michael Arntfield explains in his book How to Solve a Cold Case (Collins/HarperCollins 2022, p. 95), cold case mismanagement is in fact a breach of the public trust.
I took a closer look at HR 3359 and while I think it could provide great benefit in some cold cases around the country, I don’t take a lot of comfort from it in the 45-year-old murder of my brother Tim. Here is the new law:
As I read the law, the 1977 murder of my brother would qualify as a cold case murder under Sec. 11 and Sec. 12 (1)-(6) (A) and (B). Tim’s abduction and murder was previously investigated by a Federal law enforcement entity. I know that because I was interviewed myself by an FBI agent in my parents’ living room in the days after Tim’s abduction. I know the FBI interviewed Doug Wilson, a witness from the evening Tim was abducted and were present when he was hypnotized. I know Agent Mort Nickels (sp?) worked with the task force in 1977 and 1978 to try to establish the make and model of the car that left a bumper impression in the snow near Kristine Mihelich’s body, the child murdered weeks before Tim was. I know that Agent John Oulette worked with the “rejuvenated” task force post-2005 and that after he retired Agent Sean Callaghan replaced him and that he has been present at many meetings about this case.
The trouble is when you get to Section 12 (6) (C) and (D)–all probative investigative leads have been exhausted and no likely perpetrator has been identified. Stick with me here, but the law also gives complete discretion and authority to the head of the federal agency (here, presumably the FBI because even an application to the DOJ would presumably be investigated by the FBI) to determine if the case merits a full reinvestigation. Section 2 (a). Once this determination is made, there is no right of appeal or judicial review. Consider Section 8 (5). No request can be made again within five years unless there is “newly discovered, materially significant evidence.” Section 6 (a) (b).
So, assuming it would be the head of the Detroit office of the FBI making such a determination on a full reinvestigation, what is to keep him/her from determining all probative leads have not been exhausted (because they HAVEN’T!) and that no likely perpetrator has been identified (BECAUSE AT LEAST ONE HAS) and rejecting the application? There is no mechanism for a determination that the agency is in fact stonewalling to slow walk or scramble probative leads and to say “so what?!” to a likely perpetrator. What I’m trying to say is that the OCCK case is not some stalled-out investigation by agencies with no funds and a small staff. It is a purposely jammed-up investigation that this law really does not address.
In that regard, contemplate Section 10, “Multiple Agencies,” and try to envision the numerous agencies involved in the OCCK case coordinating to make sure there is “only one joint case file review or full reinvestigation occurring at one time,” and the prohibition of multiple concurrent reviews (Section 2 (f) and Section 4 (d)).
Furthermore, the law does not contemplate any enforcement for at least one year. Section 8 gives agencies one year to promulgate regulations to carry out this law and to train employees and officers to comply with its requirements, including disciplinary sanctions for employees who willfully or wantonly fail to comply. Note that the head of the agency is the final arbiter of whether such failure occurred and the determination is not subject to judicial review. Section 8 (b)(5).
Section 3 requires each agency to develop a written application for a family member to fill out to request a case file review. When or how this is to occur is not specified. And how is a family member without the resources to file FOIA requests and hire attorneys to assist in this endeavor supposed to fill in the blanks for the agency head about what investigative steps or follow-up was missed in the initial investigation; whether witnesses should be interviewed or reinterviewed; or whether the most current investigative standards have been used on physical evidence? How am I supposed to know what the police won’t tell me or forbid others from sharing with me? After I fill out my “application,” no matter how well-supported, how likely is it that some guy at the Detroit FBI office just calls the state police or Oakland County and gets told a line of bullshit “oh, we’re working on it, still getting the physical evidence together and willing to pursue any genetic genealogy leads!” My application gets rejected, don’t come back for five years. “I’m sorry ma’am, but the state agencies are still working the case and we can’t share any information without compromising our hot leads. Trust us.” I just don’t see where there is any real oversight in a case as messed up as the OCCK investigation where the lead agencies (MSP and the OCS, according to the FBI) are deceptive and manipulative.
Will it be my job to point out all of the deficiencies in the investigation and the leads that are still not extinguished, with a final demand that at the very least a Federal agency ensures the MSP runs all of the evidence through a third party lab and pinky-swears to legitimately investigate any leads developed through genetic genealogy and the network of any such suspect (since it is obvious multiple men were involved in this murder)? And announces the results or lack thereof to the public?! No law enforcement agency or prosecutor has addressed this case publicly since the fabrication-filled press conference given by Jessica Cooper in July 2012, or the bluster-filled bullshit tossed by L. Brooks Patterson in response to interviews conducted by local media in the wake of a documentary on the OCCK case in 2018. The MSP never answers questions because they never inform the public what they are doing in this case. Big secrets in a 45-year-old case.
I guess the only good that might come out of filing such an application in the OCCK case would be that somebody, somewhere, would be required to file a report which would reflect the unsolved cold case murders being handled by the MSP and Oakland County and that some time in 2025 the National Institute of Justice will publish annual statistics concerning the OCCK case and the agencies that have dropped the ball. This would apparently go on until the end of time. Kind of an annual Hall of Shame.
I’m sorry, that just doesn’t do much for me.