Experts’ Failure to Eliminate all Potential Ignition Sources Results in Overturned Arson and Fraud Convictions in New York
We reported few months ago of the false fire investigations performed by fire investigators. Here is the link to that report.
LACK OF SCIENCE IS BEHIND MANY FALSE ARSON CAUSE AND ORIGIN INVESTIGATIONS
Arson investigation, unfortunately, is a field where junk science has been the rule rather than the exception. A large body of cause-and-effect mythology has developed in fire investigations over the years. As far back as 30 years ago we have been arguing that the opinions stated by many fire investigators were not based on science and they were in fact false. Due to these faulty opinions, many people were convicted of arson and many people lost their home and their livelihood. Some people have allegedly been put to death having been convicted of arson, based on the same old cause-and-effect mythology. Through the 1980s, proponents (including ourselves) of a science-based approach to arson investigations waged an uphill battle, finally winning a major victory in 1992 when the National Fire Protection Association (NFPA) published its Guide for Fire and Explosion Investigations (NFPA 921). NFPA 921 would subsequently become the bible in fire and arson investigations.
Prior to NFPA 921, the fundamental principles for determining the causes of fires did not involve science per se, but rather experience-based hypotheses that were not tested to determine their validity. This process, known as “negative corpus,” relied on a process of elimination rather than supporting evidence or scientifically supported conclusions, and some investigators feared that a science-based approach would establish criteria of proof that would be too difficult to meet. So, they fought NFPA 921.
The Daubert v. Merrell Dow Pharmaceuticals decision was handed down in 1993, where the U.S. Supreme Court made judges the gatekeepers of expert testimony. The ruling said that judges have to determine if expert testimony is reliable, and that using a methodology that has been peer reviewed, published, and accepted was part of that reliability test. So in cases that included fire investigations, courts began gravitating towards NFPA 921, a consensus document from a group of leaders in the fire investigation community. The U.S. courts began referring to NFPA 921 as the “standard of care” for evaluating expert testimony regarding fire investigations.
An organization called the Innocence Project [which works to exonerate the wrongfully convicted] has taken an interest in arson cases. They are going back and evaluating the science or lack thereof in investigations and comparing it with what’s available today. They estimate that between 200 and 400 individuals may have been wrongly convicted of arson based on false evidence and false expert testimony using non-scientific methods.
We are also very gratified to see state legislatures now trying to reverse some of the wrongs committed over the years as a result of these false opinions and wrongful convictions. In this blog lack of validity of common myths is reviewed, and new forensic engineering analysis techniques discussed consistent with the NFPA 921.
As a further proof of our report, we previde below a case from New York where a person was convicted based on this faulty fire investigation.
In the case of The People of the State of New York v. James Richardson, —N.Y.S.2d -, 2008 WL 442 5918 (N.Y.A.D. Third Dept.)(October 2, 2008); the Supreme Court, Appellate Division, Third Department, New York, reversed convictions of arson in the third degree and insurance fraud in the third degree having concluded that the jury verdicts were not supported by the weight of the evidence. The standard on review required the Court to independently review the evidence and make a determination of whether the evidence was “of such weight and credibility as to convince [the Court] that the jury was justified in finding the defendant guilty beyond a reasonable doubt.” Id.at *3.
On February 15, 2007, the defendant’s home was involved in a fire which caused severe damage, particularly to the kitchen area of the property. The fire was discovered approximately two hours after the defendant had left the premises and it was undisputed that the defendant had sole access to the property. Two arson investigators concluded that the fire originated in the kitchen where a space heater, refrigerator, stove, microwave, water cooler, and outside light were all plugged into and powered by a single electrical outlet through the use of a power strip. Both investigators testified that they ruled out all accidental causes. Moreover, a laboratory report confirmed the presence of a medium petroleum distillate on a portion of the baseboard where the fire originated.
However, both fire investigators, one being trained just five months prior to the fire and employed by the City of Albany Fire Department, and the other having been retained by the defendant’s insurance company, admitted that they were unable to pinpoint the actual cause of the fire. Further, and critical to the Court, was the fact that while the experts claimed to have eliminated the possibility of mechanical sources as the cause of the fire, neither had the majority of the kitchen appliances inspected, all of which were grouped together in the same area of the small, compact kitchen. Further, the investigators noticed three tripped circuit breakers, indicating a possible circuit overload, but did not determine the reason for the breakers’ failure or even determine with which appliances they were associated. Rather, the Court criticized, one of the investigators relied on an expert report issued by an engineer specializing in failure analysis who examined the space heater, the electrical outlet, power strip and the remains of several electrical wires, but who failed to examine the scene, investigate the tripped circuit breakers or examine the remaining electrical appliances in close proximity to the fire’s origin.
Further, the Court found of equal importance that the defendant had testified that he was in the process of repainting the kitchen at the time of the fire and also stored charcoal lighter fluid in a box near the space heater. In fact, cans of paint were discovered in the kitchen in the fire debris, most of which spilled during the fire department’s efforts to extinguish the fire. Thus, while investigators testified as to the presence of medium petroleum distillate—examples of which include paint thinner and some brands of charcoal lighter fluid—neither identified the specific distillate found on the baseboard and neither provided “unequivocal testimony” excluding paint thinner, turpentine or charcoal lighter fluid as the source of the distillate. The Court was also troubled by the fact that testing of a burn pattern on the floor was negative for the presence of ignitable fluids. the Court did not discuss the possibility or likelihood that a distillate may be consumed during a fire such that no residue is detected; it was not clear whether this was raised at trial.
The opinion, however, was a divided one and Judge Carpinello and Presiding Judge Cardona dissented. The dissenters noted that on appeal that the Court could not evaluate the demeanor of the defendant while testifying at trial. The dissent further noted that there was no sign of forced entry at the property and stressed the fact that two certified fire investigators did eliminate all accidental causes of the fire based on their physical inspection of the premises.
In discussing particular evidence in the case, the dissent took exception to the majority’s conclusion that the experts did not “reasonably” exclude the possibility of an electrical fire and pointed to the following: (1) the precise origin identified by a “v-pattern” on the wall was in the corner of the kitchen, near the stove; (2) none of the appliances referred to by the majority were at the base of that “v-pattern”; (3) the stove and refrigerator were examined and eliminated as potential sources; (4) the tripped circuit breakers may simply have been tripped due to the heat of the fire; (5) the baseboard at the origin of the fire tested positive for medium petroleum distillate; (6) there was an unusual burn pattern on the floor consistent with a liquid burning across the floor surface; and (7) an engineering examination of the electric heater as well as statements from the defendant eliminated it as the cause of the fire.
While the Court’s opinion makes no mention of NFPA 921 Guide for Fire & Explosion Investigations, it demonstrates that it is critical for arson investigators to eliminate all potential causes of fire before concluding that a fire is incendiary. In fact, in this case, the experts’ failure to examine and eliminate certain potential ignition sources in the area of origin was pivotal in overturning the defendant’s convictions.
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An analysis of the Friday, Jan. 3, fire that destroyed much of the park structure along the first base line is contained in a detailed report released Wednesday by Plainfield Township fire investigators.
Two employees were working to remodel Suite 306 about 10:30 a.m. when they were asked to check on a frozen water pipe in the building.
They left the suite and closed the door behind them. Two portable radiant heaters were left on high so the room would not get cold, according to the report by investigator Kyle Svoboda.
About 15 minutes later, a Fifth Third office employee working in an adjacent suite smelled smoke and when she went to investigate, a fire alarm began sounding.
She ran to get another employee for help and they returned with a fire extinguisher. They opened the door to find the trash container on fire and thick black smoke billowing to the ceiling.
One of the workers discharged the entire extinguisher at the flames and the fire died down, but it re-ignited when the extinguisher ran out.
Everyone in the building, an estimated 25 employees, then evacuated the facility.
The employee who used the extinguisher told fire investigators she did not see the sprinkler system operating when she tried to put out the fire.
Fire investigators learned, through an interview with the Fifth Third maintenance director, that the sprinkler system had tripped a circuit breaker three times in the previous three weeks and caused an alarm to activate.
The circuit operated an air compressor that keeps the sprinkler system pipes under pressure. When the compressor is off, however, air can leak out of the pipes and water can get into them.
Plainfield Township Fire Chief Dave Peterson has said he believes water likely froze in some of the pipes, making it inoperable or reducing its capacity.
The maintenance director told fire investigators that he had reset the breaker when the "low air" alarm went off. He did that after it went off at 5:34 a.m. the day of the fire and was notified by an alarm company of the problem.
Fire authorities say they don't believe the sprinklers became operational until firefighters charged the lines with water, using a fire truck. If they had worked properly, a water-flow bell would have sounded -- neither firefighters nor the maintenance director heard the bell until the lines were charged by the truck, the report said.
Svoboda ruled the fire accidental and said the trash cart was accidentally pushed in front of one of the space heaters prior to the fire.
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