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Justice Dept. won't reopen Kent St. shootings case
Published: May 3, 2012
This Thursday marks the anniversary of the Kent State May 4 shootings. Four decades after the tragic 1970 event and in light of the recent discovery of a reel-to-reel tape of the demonstration made from the dormitory room of Kent State student Terry Strubbe, the U.S. Justice Department has refused to reopen an investigation saying this new audio evidence of an order to fire was inconclusive.
While protesting the war in Vietnam and the U.S.-led invasion of Cambodia, four students were shot to death and nine more were injured by National Guard gunfire on the campus of Kent State University. Most of the people who fired the rifles were no older than the students who were shot, in what is reputed to be one of the great domestic tragedies in American history.
Alan Canfora, who is now the librarian for the Akron Law Library, was there that day, and was wounded in the gunfire.
He is one of the most vocal and active survivors of the shootings, and directs the Kent May 4 Center. He is involved in the annual commemoration of the tragedy on the KSU campus in Portage County. Canfora was instrumental in requesting the reinvestigtion after being made aware of the audio recording.
That tape was copied to several cassette tapes as a part of the federal civil suit against the Guard, which was resolved/dismissed in 1979. That in itself brings up several issues.
First, the quality of any tape copy is going to be inferior to the original. Second, the recording quality of a reel-to-reel tape is going to be far superior to a normal sound cassette tape.
That also begs a question about access to the original reel-to-reel tape. Canfora said that the original was taken by/given to the FBI early on in the federal investigation of the shootings, and that the tape was destroyed after the cassette copies were made.
Strubbe, though, has been quoted as saying that he has the original and is analyzing it himself with an eye to writing his own book on the topic.
It is unclear, however, if Strubbe has the reel or a cassette. The U.S. Attorney office has concluded that the original tape was destroyed in February of 1979 in Cleveland. A company had done a technical evaluation of the tape in preparation for the 1979 civil trial, but that company does not have a copy of the tape or any other records from that time.
At any rate, after the 1979 case was over, Canfora said that the plaintiff’s attorneys donated all of their evidence to Yale University, which is in Connecticut, to be placed in a special archive about that day here in northeast Ohio.
Those archives, said Canfora, contain all of the plaintiff’s evidence, and more: “thousands of pages of interviews and court transcripts, photos, shell casings (including two very mysterious .38 shell casings, which is another story), and numerous analog recordings, gathered over nine years and given to Yale for safekeeping.”
Canfora found that copy of the cassette tape of the shootings in 2007, while researching those archives for a book. He asked the archivists at Yale to make him a digital recording of the tape, which they did.
He then publicized the existence of that tape, and asked anyone who wanted to, to do an analysis. The Cleveland Plain Dealer took him up on that challenge, hiring two audio technicians, Stuart Allen and Tom Owen, to analyze the digitized version through modern equipment that was not available in 1979. Both technicians live in New Jersey, although they are actually competitors.
After cleaning out the background noise and enhancing the sound that was available on the tape, the techs made a startling discovery: both concurred that there was a definitive order given aloud to the Guard to fire on the students. The findings were published by the Plain Dealer on May 9, 2010.
“It confirmed what the people who were there were testifying to,” said Canfora. “There was an order to fire on us.” There was no way, however, to determine who actually gave that order.
According to the Plain Dealer report at the time, the sequence of the shootings went like this:
"Guard!" says a male voice on the recording…. Several seconds pass. Then, "All right, prepare to fire!"
"Get down!" someone shouts urgently, presumably in the crowd. Finally, "Guard! . . . " followed two seconds later by a long, booming volley of gunshots. The entire spoken sequence lasts 17 seconds.
On May 11, 2010, Canfora delivered the cassette and the findings of the technicians to the U.S. Attorney’s office in Cleveland. “I waited,” said Canfora, “two years for a response from (Assistant Attorney General for the Civil Rights Division) Tom Perez.”
The response that Canfora finally got was, he said, extremely disappointing, but not altogether a surprise.
On April 20, 2012, Canfora finally got his reply, which was somewhat sympathetic but also completely dismissive. Rather than taking the report of the technicians alone, the U.S. Attorney’s office, said Canfora, “did their analysis of the tape in-house, using a subdivision of the FBI.”
In the four-page April 20 letter from Perez to Canfora, the government takes the position that the tape does not, in fact, disclose an order to shoot and that, at any rate, any court proceedings would be limited or made moot by the applicable statutes of limitation, by double jeopardy from the 1974 criminal case against eight of the guardsmen (which was dismissed by the judge at the time), and by the fact that many of the potential civil or criminal defendants (and plaintiffs, for that matter) no longer inhabit a physical form.
The letter further set forth the conclusion that the Strubbe tape did not, in fact, disclose any order to fire.
The letter concludes with an acknowledgement by Perez of the disappointment that Canfora must feel, and regrets that the matter will not be pursued.
It was, said Canfora, “a perfunctory and ineffective analysis with no significant conclusions.”
Alan Canfora is not a man who takes disappointment lying down. He immediately shot back his own four-page letter to Perez, as well as to Mark Kappelhoff, who is the chief of the civil rights division of the U.S. Department of Justice, and who had contacted Canfora before about his requests.
Kappelhoff had informed Canfora in February, 2012, that the file had been turned over to the FBI, and Canfor described that conversation as “cordial.” Now, in the latest letter, Canfora asked if it was, as it seemed, “a three month investigation.”
Canfora’s letter openly questions the integrity of a branch of the government investigating itself, as Canfora and others have stated many times that the shootings involved an FBI informant (which is, again, another story).
The reply letter also directly challenges the factual conclusions of the 2012 Justice Department investigation that there was not an “order to fire” to be found on the Strubbe tape. There are also other sounds on the tape that may be gunfire that occurred before the guardsmen opened fire, although this is a controversial conclusion based on the sounds themselves, which may be gunfire or, as the Justice Department concluded, the sounds of Strubbe’s dorm room door opening and closing.
The letter also notes that the only analysis that was done for the 1979 evidence was the 13-second volley, encompassing 67 rounds fired by the Guard into the crowd of students, and that, therefore, that particular analysis was irrelevant to the 2012 investigation. Justice had used that old analysis as a part of its analysis, and as a part of its dismissal of the investigation.
Canfora’s says his next move will be one of publicity and possible litigation, which may include involving the international court system.
"If our federal and state governments do not provide truth, justice, healing and reconciliation, you will be responsible for motivating our further actions in and out of courts, on the local, state, national and international levels," Canfora wrote in the letter.
He will also continue to go to the court of public opinion, where he has a strong ally in the Plain Dealer.
Cleveland’s newspaper of record published an editorial the day after Perez’s letter was released, calling for further investigation of the Strubbe tape.
The editorial concluded: “A full and proper investigation of the tape's contents in light of other evidence and testimony might well answer at least some of the questions that have lingered since the day of the shooting.”