Burned in Texas!

Serious questions have been repeatedly raised as to the accuracy of prosecution evidence in arson cases.  Cameron Todd Willingham, convicted of murder by arson, was executed in 2004 by the state of Texas, although the scientific testimony in his case was considered grossly unreliable by a number of scientists. The Willingham case, and the very weighty matter of whether an innocent man had been killed, was under investigation by a government commission in Texas until Oct 1, 2009, when the governor slithered away from the matter by replacing key members of the commission.

Dr. Gerald L. Hurst, a renowned fire investigator with impeccable scientific credentials, had looked into the Willingham case pro bono, as detailed extensively in a September 7, 2009 New Yorker article.  I’d helped research similar cases with Dr. Hurst in the past and on the strength of that I asked him to comment on this matter for Dissecting Room. He kindly obliged.  My questions, below, are in bold.  Dr. Hurst’s answers are in plain type.  My insertions are contained in square brackets.

How does a community provide itself with properly trained arson investigators?

Most of them don’t. Larger cities may use specially trained police, firemen or fire marshals. These investigators typically spend 40 – 150 hours in training, followed by a period in which they accompany an experienced fire investigator for a variable apprenticeship period. Smaller communities will call other agencies such as the State Fire Marshals office for help with problematic fires.

Is there a codified science or method for arson investigation?

There is now. In 1992, the first edition of NFPA 921 A Guide to Fire and Explosion Investigation made its debut. This book, now in it’s 6th edition, is compiled by a committee of about 30 individuals from various segments of government, insurance industry and law. It stresses the use of the scientific method in fire investigation.

Does Daubert apply to fire investigation?

In theory it does now. Daubert and NFPA 921 appeared at about the same time (1992). Both were soundly opposed by the largest professional organization in the field, the International Association of Arson Investigators (IAAI). This opposition continued until about 1999, when the IAAI filed an amicus brief in the federal court in which they argued that fire investigation was an art, not a science and therefore not subject to Daubert. They lost. Since then, they have steadily if reluctantly paid more and more lip service to both [NFPA] 921 and Daubert. Unfortunately, the change in attitude at the top of the organization has remained unshared by many autonomous state chapters of the association. Daubert is also frequently given short shrift by judges who do not understand the intent of the law. Daubert is a federal law based on the federal rules of evidence. Some states have adopted Daubert and some have not.

[ In 1993, the U.S. Supreme Court handed down the seminal decision of Daubert v. Merrell Dow Pharmaceuticals.  The case involved the admissibility of novel Scientific Evidence.  In Daubert, the Court stated that evidence based on innovative or unusual scientific knowledge may be admitted only after it has been established that the evidence is reliable and scientifically valid. The Court also imposed a gatekeeping function on trial judges by charging them with preventing “junk science” from entering the courtroom as evidence. To that end, Daubert outlined four considerations: testing, peer review, error rates, and acceptability in the relevant scientific community. These four tests for reliability are known as the Daubert factors or the Daubert test. – E. J. ]

What educational qualifications and experience do arson investigators have?

95% of arson investigators have no post-secondary education. Those who have some college mostly wasted it on criminal justice as opposed to the technical subjects which are required in all other forensic sciences in order to be considered for a job. FIs [Fire investigators] are most often ex-policemen, ex-military or ex-firefighters. This is obviously a troublesome situation. The conventional answer to the problem is “more training.” But this often means setting the level of such training at a point where everybody can pass.

Is there a credible organization that certifies arson investigators?

There are two national accrediting organizations. The IAAI is the largest and oldest. The National Association of Fire Investigators (NAFI) offers similar accreditation. The various states may offer their own certification for their government employees. The private and public certifying groups are about as credible as is possible, given the demographics of their membership. I suppose that is another way of saying “No.” The Federal investigators [in the Bureau of Tobacco, Firearms, and Explosives] (ATF) probably get better training on average. However, unlike the FBI (who don’t do fires), the ATF is often overly eager to cooperate with local investigators. This blue-wall relationship can lead to their support of cases which would better benefit from Devil’s advocacy.

Do any municipal governments (including crime labs) employ individuals qualified to perform arson investigation?

Police departments, sheriffs departments, state police, fire departments, fire marshals offices and the military frequently have resident FIs. Who is in charge of investigation varies widely from area to area. Crime labs do not usually have any fire investigators. On occasion, their techs may visit a fire scene looking for finger prints or DNA, but mostly not. The biggest role of crime labs in arson cases is fire debris analysis for ignitable liquids, autopsies and toxicology. I have a case now which involves tool marks and trace evidence, but the evidence was carried to them by the FI.

Who employs most individuals who perform arson investigations?

Insurance companies and law enforcement agencies. FIs in fire departments often have police powers. Many small volunteer fire departments have a “fire marshal” or “fire investigator” who does preliminary investigations, but these people are often relatively untrained. Insurance companies usually hire FIs from “independent” civilian organizations in order to put a barrier between themselves and lawsuits. An FI may get most of his business from one insurance company if his work improves their bottom line.

This arrangement can lead to excess findings of arson or a tendency to blame the fire on a product of a well-heeled manufacturer. The states all have fire marshals offices with numerous agents who investigate fires the locals can’t handle. Most fatal or large loss fire investigations will involve one or more state fire marshals. If it’s a high-profile case, expect the ATF to be there too.

How does a private citizen find a competent arson investigator?

They mostly don’t. If they have a good-looking lawsuit for millions, the lawyer will drum up what he thinks is a good expert or at least one who is good at winning cases. An individual faced with criminal charges will probably have a tough time finding any local expert to help. The best chance is usually to hire an expert from a thousand miles away, so that he has no connections with local law enforcement. I believe the best way to find a good expert is to ask other experts. They may not be willing to help directly but there is no penalty for pointing a defendant in the right direction.

The expert-from-far-away will become a thing of the past if the insurance companies get their way. Their lobbying has led to a bevy of state laws requiring testifying fire experts to have a state private investigator’s license. This means you may not be able to hire a Harvard professor unless he has a local gum-shoe license in Texas.  In Texas, the PI law applies to everyone but insurance companies..

What is your opinion on the current status of the Willingham case?

Willingham is a political hot potato. In 2005 Barry Scheck and I gave a pitch to a Texas State Senate committee on the need to set up a local innocence project. The primary thrust of our argument was based on two of my cases, Willingham and Willis – a pair of amazingly similar bogus convictions with two totally different outcomes: Willingham executed and Willis freed. Subsequently, the Texas Commission on Forensic Science was established under the Governor Perry’s Office. Once they got their funding, they began to reinvestigate Willingham and Willis by hiring a top expert (from a thousand miles away), Dr. Craig Beyler. The good Doctor did not pull his punches. Governor Perry was the man who signed off on the Willingham execution shortly after the proof of unjust conviction and highly probable innocence had hit his desk. This situation was a bit of a political pickle.

We fully expected the Governor to try to quash the investigation to save face, but we anticipated something a little more subtle than the axing three of the committee members a day before the scheduled presentation by Beyler — followed by the appointment of a tough-on-crime prosecutor and personal buddy as the new head of the commission. The new boss’ first action was to cancel the presentation by Beyler. There will be joy in the Texas State Fire Marshals Office – at least for a while.

Governor Perry must have slept through Watergate. I’m hoping to obtain rights to the comic opera version of the story.

[ I am grateful to Dr. Hurst for his candor.   – E. J. Wagner, as always, pursuing verity. ]

Tags: Arson, Daubert, Death penalty, Fire investigation, Governor Rick Perry, Texas, Willingham