No public body should have the right to publish favorable news and then assert the exemption provisions of the Freedom of Information Act (FOIA) when contrary results arise. We may see examples of this between now and the November 8 elections. In 1977 the Oakland County Prosecutor publicly announced that Christopher Busch did not kill Mike Stebbins, the first victim, because he passed a lie detector test. In 2008 the Oakland County Prosecutor refused to release the conclusions of three subsequent polygraphers who arrived at contrary opinions after reading the same test results.
The King family requests the Michigan legislature to amend FOIA to eliminate her dictatorial decision to deny the family of Tim King any explanation of why she eliminated Christopher Busch as a suspect (Chapter 35). FOIA places both the burden of proof and the burden of going forward on the public body and not on the citizen plaintiff (Chapter 16). In my two FOIA cases both the Oakland County Circuit Court and the Michigan Court of Appeals have upheld the position of Cooper that victims in this 40 year old OCCK case are not entitled to any information on why she called me on March 1, 2010 to tell me Christopher Busch was no longer a suspect (Chapter 35). The victims, the judges and the public do not know if the Busch case was closed for professional, publicity, power and control, political or some other reason.
Many times a prosecutor will tell the public why a suspicious criminal cannot or will not be charged. Jessica Cooper has made these announcements. For instance Cooper publicly announced that she would not charge the Northland Mall officers who killed a customer because that was not their intent, a professional reason. When he was prosecutor l. Brooks Patterson made disclosures in February 1977 for not charging Busch (Chapter 41). Patterson gave a professional reason to support his conclusion. Cooper, who has not prepared or tried a case for almost four decades, has not given any reason for advising me on March 1, 2010 that Busch was no longer a suspect. FOIA does not and should not grant prosecutors dictatorial discretion in the publication of these conclusions. The prosecutor should explain the reason for this decision, especially when the police have contrary opinions.
If a prosecutor decides not to charge any suspect for a nonprofessional reason the victim currently has no remedy. For instance, if the suspect is related to the prosecutor or is a major political donor is silence proper? In Tim’s case was Oakland County upset that Wayne County may have identified the murderers (Chapter 56)? If publication shortly before an election could affect the election result a prosecutor should not have discretion to talk to the media while at the same time asserting she is under no obligation to give the same information to the victims or the judiciary (Chapters 38 to 40). This paragraph could continue for several more pages with questions and examples all of which discuss my conclusion that prosecutors should open the entire file when they tell anyone of their decision not to charge a suspect. The FOIA statute should clarify this issue!