Hours after the Austin bomber killed himself as police closed in, investigators revealed that the man responsible for a series of attacks that killed two and injured five had left behind a 28-minute recorded confession.
Reporters asked interim Police Chief Brian Manley if police planned to release the audio to the public, who had suffered through nearly three weeks of terror caused by Mark Conditt’s crimes.
“No, not at this point,” Manley said.
They may never.
Despite a lingering hunger for details about the motive behind the wave of bomb attacks, Texas law leaves the release of such information squarely on the shoulders of law enforcement. So far, they are fighting to keep Conditt’s recording and other case files secret.
The recording is among a massive trove of evidence up to 500 law enforcement officers compiled in one of the largest investigations in Austin history. It includes statements from the bomber’s friends and family, transcripts of interviews with his victims and possibly some indication of how he selected his targets.
The absence of those records leaves a gaping void in the public’s understanding, experts in public records law say, and potentially stands in the way of a city’s collective closure.
“The community at large was very involved,” said Laura Prather, a First Amendment attorney and board member for the Freedom of Information Foundation of Texas. “They were basically under siege for quite a long period of time. We believe that the public not only has the right to know that information but that it would help law enforcement because it would enable the public to have faith in their law enforcement instead of being left to speculation.”
There have been just a handful of serial bombers in America since 1900, and experts on those cases say virtually all of them intended to send a message. Police and federal agents have offered no clue about what Conditt’s motive could have been, saying only that it was not based on hate, and hinting that political ideology played no role.
In an April 3 response to records requests from more than 60 parties, including the American-Statesman and other local and national media outlets, Austin city lawyers cite a legal provision allowing them to shield information during an ongoing investigation. Releasing it would compromise their work, they say.
“Although the primary suspect in the bombing incidents is deceased, many questions remain, including whether other individuals were involved in or were aware of the suspect’s activities,” Assistant City Attorney Cary Grace wrote to the Texas attorney general’s office seeking its opinion on the legality of withholding the materials.
Officials point out that the investigation is five weeks old, and that typically, the release of investigative records does not happen rapidly and can take months, particularly in a complex case.
Even once the investigation is closed, experts in Texas public records law warn the information might not be released. The law allows police to keep evidence, including case files, hidden in cases that don’t result in a suspect’s conviction either through a plea agreement or trial, neither of which is possible for Conditt.
Behind the scenes, some law enforcement officials say they’re hesitant to ever make the recording, in particular, available to the public. They worry it could inspire copycats or glorify Conditt. They also fear it could further traumatize victims, their families and even Conditt’s parents.
“I have heard from many members of our community and understand their concerns about hearing the recording of the Austin bomber,” Manley said in a statement. “However, the investigation continues and we are not considering the release of the bomber’s recording at this time. We will address this issue at the appropriate time and will weigh the public interest versus the public safety concerns if it were to be released.”
Separately, other records compiled in the investigation remain hidden. They include federal search warrants, currently under seal, that contain undisclosed details about the crimes.
Yet the recording appears to draw the most public interest. The Statesman, citing anonymous sources, reported soon after Conditt’s death that on the recording, he says, “I wish I were sorry, but I am not.” He also calls himself a psychopath and threatens to blow himself up at a crowded McDonald’s to avoid capture.
The copycat question
The concern that facts and details about a criminal’s behavior might spur others to carry out nefarious deeds has been around for more than a century. Social scientists and criminologists consider it a well-founded worry.
David F. Greenberg, a New York University sociology professor, said historians of crime have suggested that Jack the Ripper, a serial killer in London in 1888, inspired imitations and was viewed by some as a model.
“They took him as an example of how evil you can be and to strive for evilness,” he said.
Over the years, he said, experts have continued to think that attention on criminals might push others toward crime. Most recently, he said, some victims advocates have begun successfully pushing media outlets to limit attention on violent criminals to avoid a perception that their actions are being glorified.
“I think it is a reasonable concern,” he said.
James R. Fitzgerald, a retired FBI profiler who worked on the Unabomber case, said he thinks the public could benefit “from some degree” of public disclosure of Conditt’s confession. For instance, he said people might get an insight into his mindset and possibly be able to spot similar behavior in future offenders.
However, he suggested that they could learn what they needed from a transcript or from a law enforcement summary.
“It’s always possible,” he said of people being prompted to do harm from what they learn about the bomber. “People are inspired by many direct experiences or very indirect experiences.”
Fitzgerald said he can understand the public interest in learning more, particularly from the recording. He says he’d like to hear it himself.
“The profiler and the behaviorist in me wants to know everything about it,” he said.
Whether more information will help the community heal or understand can be a matter of perspective.
“People tend to do better with more information because in the absence of information, there is a real pull to fill in the blanks in ways that may not be so helpful,” said Austin licensed clinical psychologist Laura Ebady, who has treated trauma patients. “At the same time, it is likely the information would be disturbing, and I would expect if it were released, it would be stimulating and stir some difficult feelings for our community.”
Oft-used exception to Texas records laws
Most information compiled and kept by the government is considered publicly available under Texas law.
“This presumption of access to public information especially extends to law enforcement,” Dallas open records attorney Paul Watler wrote in a recent piece for the Freedom of Information Foundation of Texas. “After all, this is the department of government with the awesome responsibility for public safety. … Just as the power of the state reaches its zenith in the law enforcement function, the need for transparency and maintaining public confidence is also at its highest.”
But courts have upheld that evidence collected during a criminal investigation may be withheld in any case “that did not result in conviction or deferred adjudication.”
Privacy is one reason. Details about an investigation that did not result in charges could needlessly harm a person’s reputation, lawmakers and courts have said.
The clause has been used by police to routinely deny closed-case records from reporters and attorneys when a case did not end in a successful prosecution.
The issue becomes more complicated when the suspect is dead, even when the suspect dies during a struggle with police and, therefore, is never convicted.
“There’s this gray area,” Prather said. “In that gray area, it’s completely up to law enforcement. They have discretion to disclose the information.”
Watler said, “The law enforcement exception exists to protect the integrity of police investigations — not the privacy of a dead suspect or to avoid the reality of warped reasoning from the mind of a serial murderer.”
Last year, state Rep. Joe Moody, D-El Paso, sought to add a provision to the law that the information could be released if the suspect was dead or gave consent. His proposal did not pass out of the House.
The release of investigative details in the bombing case might not solely hinge on state law, however. Because it also involved hundreds of federal agents from the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives, the information could — at least in theory — be disclosed under the federal Freedom of Information Act.
That process, however, can take months or years.
Prather cited cases in which local law enforcement officials have refused to release information, only to have it made public by the federal government.
“Sadly, Texas law enforcement has continued to use their discretion to prevent disclosure of information and yet sometimes that very same information is disclosed (by the FBI),” she said.
Prather cited the case of 18-year-old Graham Dyer, which was part of a Statesman series last year about police restraint. He had been picked up by Mesquite police in 2013 after officers received calls that he was behaving bizarrely.
Hours later, Graham, who was having a bad LSD trip, was found unresponsive in the city jail. He died the next morning at a Dallas hospital from what an autopsy described as self-inflicted head injuries.
Seeking more information about their son’s final moments, his parents, Robert and Kathy Dyer, asked the police for records and video from the evening. But Mesquite refused, citing the state law.
When the family finally obtained the videos by bypassing Texas laws and using federal statutes, they showed police using a Taser to shock the 110-pound, handcuffed teenager in his testicles and pushing his head against the ground with their feet. The images also showed that officers did not restrain Graham in the back of the police cruiser, allowing him to injure himself. The tapes also appeared to contradict police reports that he was combative at the jail.
The parents’ lawsuit against the Mesquite police is pending in federal court.
Scott Bonn, a nationally known criminologist and author, cautioned that the release of more materials in Austin’s bombing cases, including the recording, might not soothe or satisfy the public.
“Many of these types of events are really beyond our scope of comprehension,” Bonn said. “If we try to understand it, sometimes we end up chasing our tails. We obsess over something we will ultimately never understand.”
Eyes on public safety
Statesman investigative reporter Tony Plohetski, working in partnership with KVUE-TV, extensively covered the bombing attacks in Austin. He was the first to report several key developments in the case, including the bomber’s final confrontation with authorities in the early morning hours of March 21.