Arson
convictions
challenged by science
By
Maurice Possley
Tribune
staff reporter
Published
October 18, 2006, 8:28 PM CDT
Flames
shot from a first-floor window and smoke curled from the
second floor as Amanda Hypes pulled up to her frame house
near Alexandria, La., in January 2001.
Hypes called to her oldest child, 10-year-old Sadie. "I
yelled from the stairs, 'Sadie, just come down the
stairs!'" she told investigators the following day. "I
yelled and I yelled… She wouldn't answer me.
Hours
later, when firefighters entered the smoldering home, they
found Sadie, her 6-year-old brother, Luke, and their
3-year-old sister, Jessica, dead in the debris.
In April 2002, a Rapides Parish grand jury indicted Hypes
on charges of arson and murder based on a California fire
expert's findings—an analysis conducted more than a year
after the blaze was extinguished and the house was razed.
Prosecutors said they would demand the death penalty.
Hypes remained in jail for more than four years awaiting
trial until this June, when a judge dismissed the
indictment and ordered her released. He ruled that the
initial arson finding by Louisiana authorities was based
"merely on an old wives' tale" and that "every shred of
evidence to prove or disprove a possible crime was
destroyed and placed in a pile."
The arson prosecution of Hypes is one of a growing number
where defense experts are challenging cases based on
science that undermines long-held theories. They represent
a new wave of courtroom challenges that are causing older
cases to be re-examined and are pitting expert against
expert in the name of science and justice.
The cases highlight not just the evolving science behind
arson investigations, but two crucial issues facing the
field: an ongoing split on whether to accept scientifically
established fact and a lack of training to bring
investigators up to date on the latest thinking.
"The current training process is, in most cases, deficient
in teaching fundamental knowledge that can be applied to
all fires," said Douglas Carpenter, a respected fire
investigator.
Earlier this year, Carpenter and Richard Roby, both of
Maryland-based Combustion Science & Engineering Inc.,
along with Jose Torero of the University of Edinburgh,
which has long pioneered fire research, called for
development of a more advanced science curriculum for fire
investigators.
The leading guide to fire science is a manual known as NFPA
921, a publication of the National Fire Protection Agency,
an international group dedicated to fire safety. First
published in 1992, it is a guide to the scientific
debunking of old and unproven arson theories.
"I am not sure how far we have come since the introduction
of NFPA 921," said Carpenter. "We certainly have raised
awareness, but I do not think the [investigation of fires]
has advanced as much as some think it has."
While some in the forensic community equate the
significance of the new scientific findings with the advent
of DNA, there are key differences. For one, fire science is
nowhere near as precise, and in fact makes a strong case
that investigators should rarely point to fire-scene
evidence as 100 percent proof of arson.
With some investigators refusing to embrace new science, a
spate of high-profile court cases is emerging where fire
evidence is being strenuously debated. Among them:
Louis Taylor is serving a life prison term for the worst
fire disaster in Arizona history—a 1970 blaze in Tucson
that killed 29 people. Taylor, then 16, was convicted of
setting a series of fires in a hallway of the Pioneer
International Hotel to distract authorities while he
burgled guestrooms. In a bid to get Taylor a new trial,
private fire experts have re-examined the case and say
prosecution testimony about the fires has been
scientifically debunked.
Dennis Dougherty is on Death Row in Pennsylvania after
being convicted of setting a fire in 1985 that killed his
two sons, Daniel, 4, and John, 3, in Philadelphia. Newly
appointed lawyers expect to ask for a new trial next month,
citing expert opinion that the state's proof of arson at
trial in 2000 was scientifically wrong. Gerald Hurst, an
arson expert, reviewed the case and found the state's proof
was based on unreliable evidence.
For the past two years, state prosecutors pursued the death
penalty against Dennis Counterman for allegedly setting a
1988 fire in Allentown, Pa., that killed his three sons,
even though a fire investigator hired by the prosecution
said there was no basis for the original finding of arson.
On Wednesday, after 18 years behind bars, Counterman
accepted a plea deal under which he maintained his
innocence, but admitted prosecutors had evidence that could
convict him. He was freed immediately, and the case was
closed.
The increasing focus on arson prosecutions was spurred in
part by a Tribune investigation that showed Cameron Todd
Willingham was executed in Texas in 2004 based on
scientifically invalid arson evidence.
Prompted by the Tribune report, Barry Scheck, co-founder of
The Innocence Project, formed an arson review committee to
re-examine cases where defendants say they were wrongfully
convicted of arson.
The Willingham case was the first to be reviewed, and four
experts, including Carpenter, concurred with the Tribune
findings and called for Texas authorities to re-examine
that case and hundreds of other arson prosecutions in that
state.
Since the formation of the review committee, The Innocence
Project, which has used DNA testing to free scores of
wrongfully convicted defendants, has received about 30
requests to review individual arson cases, according to a
project spokesman.
The
prosecution of Hypes began with the discovery by Louisiana
state fire investigators that her home's concrete slab was
flaked and chipped—a phenomena known as spalling. A day
after the fire, the house was razed and the slab washed
clean in an attempt to find more spalling.
Until disproved by scientific testing, spalling for decades
was considered proof of arson, the result of heat so
intense that it could only have come from a fire fueled by
an accelerant. But in recent years, tests have proved that
spalling can be caused by fires that involve no
accelerants.
Five
days after the fire that killed her three children, Hypes
was interrogated for hours by Rapides Parish sheriff's
investigators in an attempt to get a confession. Hypes
insisted she was innocent.
"There was never a chemical in my hand," she said,
according to a transcript of the interrogation. "There was
never anything to light a fire in my hand. There was
nothing. …How this is happening, I'll never know."
When an investigator told her she had murdered her
children, Hypes replied, "No, they were not murdered. My
babies were not murdered."
"Gas poured all over them," the investigator said, even
though there was no evidence of gasoline found in the
house. "You won't get a bond, three counts of first degree
murder. You won't ever get out."
After Hypes continued to insist she did not start the fire,
the interrogation ended and she left to bury her children.
More than a year later, she was indicted after the
prosecution hired John DeHaan, a private fire investigator
from California, to re-analyze the fire.
In an interview with the Tribune, DeHaan said, "I came
along and I said spalling doesn't have anything to do with
it. The original investigation was pretty dreadful, and
there were very few things I could salvage from that
investigation."
DeHaan examined grand jury testimony of witnesses who had
been in the house before the fire and described the
household furnishings. He also examined the testimony of
witnesses who saw the fire after it was discovered. DeHaan
concluded there were separately ignited blazes in a
first-floor bedroom and the kitchen.
His report, based in part on calculations of the amount of
heat that would be generated by the furniture, said that
because the fire moved quickly—consistent with the use of
an accelerant, though none was found—and because he could
find no accidental cause, the fire must have been arson.
As part of his report, DeHaan submitted his findings to
David Icove, a fire expert at the University of Tennessee,
who conducted a computer modeling and said he agreed with
DeHaan's conclusion that the fire was started in two
separate places—an indication the blaze was deliberately
set.
Earlier this year, defense lawyers J. Michael Small and
James Doyle requested the indictment be dismissed, alleging
that prosecutors violated grand jury secrecy by providing
its testimony to DeHaan.
After Judge Donald Johnson granted the motion, Hypes'
lawyers asked that she be released from jail while the
ruling was appealed. They also called three fire experts to
testify about the prosecution's arson evidence.
The first witness, George Barnes, a retired agent from the
federal Bureau of Alcohol, Tobacco, Firearms and
Explosives, said he initially declined to work for Hypes
because he had never before testified for a defendant in a
criminal case.
But after examining the evidence, he changed his mind. "I
took this case because the methodology and conclusions were
outrageous," he testified. "There was very little if any
adherence to the scientific method, and conclusions were
based on wives' tales that had long since been proven to be
incorrect. And based on the reports, I saw absolutely no
indication of an incendiary fire."
Carpenter also was called as a defense witness and severely
criticized Icove's computer modeling, noting that the
computer program showed temperatures in a hallway where
there was no fire to be higher than in rooms where there
were flames.
He said Icove's "report is wrong. His modeling is wrong.
And any conclusion based on it is wrong."
The defense also summoned John Lentini, a fire investigator
who reviewed the Willingham case for The Innocence Project
as well. "I was just shocked that this far down the road,
where we have done so much work to try and dispel the
mythology, that I was looking at a case based on spalling,"
Lentini testified, calling the examination of the Hypes
fire "a case that has been botched worse than any fire
investigation I've ever seen."
Lentini said the damage to the kitchen, the living room and
a downstairs bedroom were the result of a fire phenomenon
known as "flashover," where large areas suddenly explode in
flames due to a build-up of gases. Once flashover occurred
and Hypes' house was razed, he added, there was no way to
determine if the fire was started in more than one place.
"What we've got is John DeHaan…trying to get to an arson
determination without any evidence," Lentini testified.
On June 27, after hearing the testimony, the judge ordered
Hypes released on bond. "The court finds that proof is not
evident that arson even exists," Johnson ruled.
Thomas Walsh, the Rapides Parish prosecutor handling the
case, appealed, but last month, the Louisiana appellate
court upheld the indictment's dismissal.
Walsh said that should further appeals fail, the case would
be "returned to our jurisdiction, and we would be able to
go back to the grand jury to resubmit it."
mpossley@tribune.com