I commenced this story with two of my major concerns over the investigation of my son’s death. For 30 years the King family, and to my knowledge, the families of the other three victims, relied on law enforcement to identify the killer or killers. It was more than 33 years after Tim was abducted that the authorities provided me with any information. In response to my FOIA action, the Michigan State Police provided me with 3,411 pages on December 15, 2010.
My first major concern was the automobile identification process. I outlined these concerns in Chapters 3 to 7. There was little or no basis for emphasizing the participation of a blue AMC Gremlin when the files make substantial reference to other automobiles. In particular, a Pontiac LeMans was identified as being involved in three of the murders and the fourth murder even referred to a Pontiac without identifying the brand. This has continued for forty years. Why? Was this tactic deliberate? There were a lot more Pontiac LeMans on the road than there were AMC Gremlins. Is it possible for the current investigating officers to correct my perceived omissions?
My second concern is the lack of information from the Oakland County Prosecutor and the Oakland County authorities. It is my understanding that on October 28, 2008, the date of the Search Warrant, the Oakland County Prosecutor, the Wayne County Prosecutor and the Michigan State Police all believed that Christopher Busch was the best suspect at that time. I was unaware of the Search Warrant Affidavit until the Oakland County Prosecutor went to Court without my knowledge and perhaps the judge’s knowledge of my involvement to deny everyone access to this document. Was this done with a suggestion or cooperation of the Oakland County officials? Why did Jessica Cooper advise me on March 1, 2010 that Busch was no longer a suspect?
In continuing my story, over the next chapters I will discuss the following:
a. Identification of Busch as a suspect
b. Identify, Christopher Busch, Gregory Greene, Vince Gunnels, Ted Lambrogine and Archibald Sloan, the only suspects identified to me by law enforcement, and
c. The chronology of the events leading up to my FOIA lawsuits.
My concerns on the search warrant information bother me both as a lawyer and as a father. Am I entitled answers to the following Search Warrant questions:
1.) On October 28, 2008, the Michigan State Police, the Oakland County Prosecutor, and Wayne County Prosecutor all believed that Christopher Busch and his companions were the leading suspects in the Oakland County Child Killer Case. What changed between then and the March 1, 2010 phone call advising me that they were no longer suspects?
2.) Did the Oakland County Prosecutor violate the legal procedure I discussed in these chapters, including obtaining statutory Suppression Orders which are not applicable in FOIA cases?
3.) Was the Oakland County Prosecutor obligated to tell Judge Kimberly Small of her intention to file the Suppression Orders in my FOIA cases?
4.) Do the Oakland County Prosecutor and the 48th District Court owe an explanation as to why the two April 29, 2011 Orders are not identical and why they are dated contrary to “two true copies” of the original undated Order?
5.) How did the Oakland County Prosecutor obtain the Suppression Orders without sworn testimony.
6.) Did the Oakland County Prosecutor consult with other Oakland county officials before taking any action in this regard?
Interestingly, if I had not been served with the Suppression Orders, I may never have had access to the Search Warrant Affidavit. God works in mysterious ways.
I will discuss other prosecutorial actions and issues in the following Chapters.
In order to grant the public access to government records, Michigan passed FOIA in 1976. In most lawsuits the plaintiff has the burden of going forward in presenting its case and the burden of proof on contested matters. However, FOIA places this responsibility on the public body.
FOIA also lists a number of exemptions related to documents which the public body is not required to produce. To gain an exemption a public body must indemnify the document and indicate the basis for the exemption.
As I mentioned earlier, in my FOIA action against the Michigan State Police, I received 3,411 pages. However, the documents did not contain the Search Warrant or the Search Warrant Affidavit and the Michigan State Police did not claim any exemption. The Oakland County Prosecutor produced nothing and this decision has been upheld by the Oakland County Circuit Court and the Michigan Court of Appeals. This is true even though the Michigan Constitution states that all citizens have a right to confer with the prosecutor (Article I, Section 24).
Earlier this year there was a great deal of publicity over the video tape of a police officer shooting a Chicago citizen. After I commenced the publication of this blog, Chicago Mayor Rahm Emanuel, suggested that police information should be available to citizens within 60 days after the shooting. However, in Michigan this time period continues for at least 40 years. While I seldom agree with the Chicago mayor on political matters, PERHAPS MICHIGAN SHOULD TAKE SOME LEGISLATIVE ACTION TO PROVIDE THOSE MEMBERS OF THE PUBLIC WHO PROVIDE GOOD INFORMATION IN CRIMINAL CASES WITH THE REASONS FOR FAILURE TO PROSECUTE.
P.S. Tim King died 39 years ago on March 22, 1977
I first filed my FOIA case against the Michigan State Police and the second one later against the Oakland County Prosecutor. The Oakland County Prosecutor immediately filed a Motion to Consolidate the two cases. This Motion was denied by the Oakland County Circuit Court, the Michigan Court of Appeals and the Michigan Supreme Court. I had no original reaction as to the reason for filing this Motion, but I have now concluded that it was filed to deny me access to the search warrant affidavit and all other information and for no other reason.
In the typical lawsuit much more time is related to discovering matters and pretrial preparation than to the actual trial of the case. If the cases have been consolidated, Oakland County taxpayers would have spent funds on these pretrial matters in the Michigan State Police case and the Michigan taxpayers would have similar payments in the case against the Oakland County Prosecutor. Judge O’Brien and Judge Potts delayed any activity on my cases until the consolidation matter was settled by the Michigan Supreme Court.
After I obtained access to the search warrant affidavit on April 1, 2013 and the other information discussed in the search warrant chapters, it is my conclusion that the Oakland County Prosecutor, and perhaps other Oakland County agencies, filed this Motion to Consolidate to take control both cases and to deny me any access to the OCCK case. Fortunately, the Michigan State Police honored their FOIA obligation and gave me 3,411 pages on December 15, 2010. Admittedly this is conjecture on my part but I cannot think of any other reasonable conclusion.
When the Oakland County Prosecutor would not discuss the status of the investigation with me, I wrote Oakland County Sheriff, Michael Bouchard a short note in August 2012 asking for a meeting with his lead investigator. Sheriff Bouchard and I exchanged emails and I met with Deputy Sheriff, Gary Miller on August 29, 2012. Sheriff Bouchard volunteered to attend but I told him that I did not think it was necessary. No prosecutor attended the meeting.
At the meeting, Miller advised me that his office took no further action after the trace evidence at the former Busch residence did not contain anything which might relate to the four children. The Michigan State Police documents delivered to me on December 15, 2010 contain a report that a phone call had been made to the Montmorency County Sheriff dated March 19, 1977 in which a citizen reported that, Christopher Busch, a known pedophile, was at his vacant family cottage in Montmorency County with three small boys. Tim was missing from March 16 to March 22. This supports some comments I have heard over the years that the children may have been taken to a summer cottage because all four deaths took place during cold weather. My family has been further advised that the Busch cottage in Montmorency has been destroyed after April of 2008 and has been replaced by a new cottage. Is this just coincidence?
When I later discussed this matter with one of the investigators, he advised me that he requested the search warrant to be issued for both locations, but he was successful in obtaining only having the search warrant for the former residence.
Ex Parte proceedings do not require you to give any notice to interested parties. Section 9 of the search warrant statute regarding warrant suppression orders allows the Oakland County Prosecutor to obtain the search warrant suppression order without notice to any other persons or their attorneys.
When the Oakland County Prosecutor filed the Motion for Entry of the Clarification of the October 20, 2008 original order of suppression, her office knew of my pending FOIA cases against the Michigan State Police and the Oakland County Prosecutor. The comments to Rule 3.3 of the Michigan Rules of Professional Conduct contain the following instructions regarding the obligation of an attorney in ex parte proceedings:
“Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts that are known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.”
When I was given access to the court file on April 1, 2013, I noticed the motion filed by the Oakland County prosecutor was not supported by an affidavit. When I ordered a transcript of the proceeding, I was advised that there was no hearing. I will discuss my concerns over a court saying orders without a supporting testimony in the following chapters.
What did the Oakland County Prosecutor tell Judge Kimberly Small? If you were served with a suppression court order suspending your driver’s license and could not obtain any background information on the entry of the order, I assume you would be as disturbed as I am about the legal basis of the Order. It bothers me more as a lawyer than as a father. Am I entitled to an explanation? How did the OCP obtain this order without competent testimony?
After delivery of the two Suppression Orders to the Oakland County Circuit Judges in my FOIA cases, both judges properly ruled that I could not have access to the Search Warrant information in their courts. If you wish to challenge a court order you are required to go to the judge that entered the order and contest the matter in that court.
When I visited the 48th District Court, the Clerk at the counter did not know what I was talking about. The Suppression Orders did not have a case number, a requirement under the Michigan Court Rules. When she talked to her superior, he told her not to ignore my request.
I then filed a Motion to intervene in the 48th District Court case to get access to the file. In response, Assistant Prosecutor, Paul Walton, filed an Affidavit stating that the Oakland County Circuit Judge, Wendy Potts had already denied me access to the information. Similarly, he had previously told Judge Potts that I was required to bring the matter before the 48th District Court. Michigan Case Law does not allow an attorney to take contrary positions in different lawsuits. I would like an explanation from Walton as to which court had jurisdiction to hear my argument since he denied me jurisdiction in both courts.
After Judge Small denied my motion to intervene, I filed a Motion for Reconsideration which was not acted upon for almost a year. When I wrote the Judge a letter asking for a ruling on my Motion for Reconsideration I received a telephone call from Gary Klein who identified himself as the research attorney for the 48th District Court. Klein agreed to make the information available to me. I visited the Court on April 1, 2013 and was given the Search Warrant information.
In order to obtain the April 29, 2011 suppression orders from the 48th district court, the accompanying Ex Parte Motion to Clarify Order of Suppression of the October 28, 2008 search warrant and affidavit filed by the Oakland County Prosecutor states as follows:
4. That this Court has issued sixteen orders continuing the suppression of the search warrant and affidavit in this matter. The last issued March 23, 2011, and to continue to in force to May 18, 2011.
The expiration date on the fifteenth Order of Suppression expired on March 7, 2011, 840 days after October 28, 2009 Search Warrant Affidavit was issued. The sixteenth Order was not issued until March 23, 2011. Obviously, one or more of the 15 orders of suppression were issued after the expiration date of a 56 day period. Whenever the first order was not renewed within the 56 day period it can no longer be suppressed. This occurred all subsequent orders of suppression were improperly entered. The statute contains no provisions allowing the prosecutor to obtain ex parte orders once the 56 day renewal period is breached. Is my interpretation correct? Did the Oakland County Prosecutor advise the 48th district court of this interpretation when the order was entered?