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Viewpoints

Arson and "Junk Science"

April 3, 2012 04:27:00 am
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By Paul Bieber

U.S. Magistrate Michael Seng, U.S. District Court, Eastern Court of California, is expected soon to announce his ruling in an appeal of a case that is a textbook example of bad fire science leading to a wrongful conviction. 

His decision, and the testimony that led to it, will shine a light on a national travesty of justice, where arson evidence that has been discredited for 20 years has been used to misidentify accidental or undetermined fires as arson.

The case involves a defendant named George Souliotes, who was sentenced to life without parole in 1997 for what now appears to have been an accidental fire.  During hearings presided over by Seng, fire experts testified that the evidence used to gain his 1997 arson conviction was utterly unreliable and largely based on “junk science.”

Arson cases are often based on forensic evidence presented in court as irrefutable science, but which in fact has either never been tested or already been proven to be unreliable.

For years, fire investigators were taught that certain burn patterns and fire damage were only created in the presence of a liquid accelerant, such as gasoline.  Furthermore, if a fire was perceived to have burned hotter than normal, the abnormal heat was often attributed to the presence of a liquid accelerant. 

Since the presence of an ignitable liquid in an unexpected location is a strong indicator of an fire set intentionally, the presence of these fire patterns and the perception of abnormal heat were considered prima facie evidence of the crime of arson.  

Incredibly, if laboratory results came back negative for the presence of an ignitable liquid— as they would in an accidental fire—the suspect chemicals were assumed to have burned away from the fire or simply evaporated before the sample could be taken and sealed in a container.  Many arson convictions throughout the nation have been based on exactly this type of evidence.

Fire investigators are now trained to use more scientific methods to determine if a fire is arson or accidental, but many of the victims of these dubious and unscientific conclusions are still incarcerated, and at least one has been executed.

In the early 1990s, these arson myths had already been punctured by scientific research. It became clear that in any fully involved house fire the burn patterns cited by fire investigators as arson indicators were just as likely the result of an accidental fire. 

Fire research has also repeatedly shown that the heat of a fire has nothing to do with the presence or the absence of a liquid accelerant.  Recent blind study research has shown that the accuracy of experienced fire investigators in determining the presence of a liquid accelerant, by visually examining the burn patterns remaining after the fire, amounts to no better than a random guess. (For further information on this, see The Arson Research Project website)

The new research took years to gain acceptance within the fire investigation community. 

While fire investigators were slowly embracing a new methodology, people continued to be convicted of setting fires that were probably accidental.  Today, nearly all fire investigators utilize the accepted standard of care, but this has done nothing to improve the lives of the countless prisoners throughout the nation serving long prison sentences based on unreliable evidence. 

Nationwide, 5,405 people were in prison for arson in 2002, the latest year for which statistics are available, according to figures from the Bureau of Justice Statistics, National Corrections Reporting Program.

Yet, in 2004, a dozen years after the fire investigation community acknowledged that arson must be proven by science, not mythology, Cameron Todd Willingham was executed in Texas for setting a fire that killed his three young children.  

His conviction, like so many others, was based on exactly this type of unreliable burn pattern analysis.   Fire experts nationwide now agree that the fire that killed Willingham’s children and led to his execution was almost certainly accidental, not arson.

Such “voodoo science” is so prevalent in old arson convictions that the Texas Forensic Science Commission recently recommended that all arson convictions in Texas be reviewed in order to determine which of the convictions are based on unreliable forensic evidence.  This followed the passage of state resolutions supporting judicial review of arson cases in Arizona, Nebraska and Oklahoma.  

Texas is on the right path in reviewing all of its arson convictions in order to identify the small number of cases hidden amongst them where innocent people have been convicted of setting what were really just accidental fires. 

This review should serve as a model for other states to conduct their own arson case reviews.  Without such a proactive review it is nearly impossible for the wrongfully convicted to have his day in court.

The California case of George Souliotes illustrates just how difficult it can be for a victim of unreliable arson evidence to find justice. 

Souliotes was convicted in 1997 on a charge of arson and triple murder, for setting a fire in his rental property that resulted in the death of Michelle Jones and her two young children.  He was sentenced to life without parole, and is currently being held at Salinas Valley State Prison, outside Soledad, CA.

For the past 15 years, with the help of the Northern California Innocence Project, pro bono attorneys and investigators, Souliotes has been fighting an epic battle through state and federal courts to show that at his original trial, the testimony used to convict him was unreliable and based on discredited science. 

All of the burn patterns and other dubious forensic evidence used to convict Souliotes of arson are created in any fully involved house fire, accidental or intentional.  It now seems clear that George Souliotes has spent the last 15 years of his life in prison for a crime that was never a crime at all. 

Recognizing some of the same types of unreliable evidence and testimony that led to Todd Willingham’s execution, the Ninth Circuit court ordered an expedited federal evidentiary review.  As a result, Judge Seng will now decide whether Souliotes meets the legal threshold of the “actual innocence gateway.”

Basically, he will rule on whether any jury, considering all of the reliable evidence in the case, would find Souliotes guilty beyond a reasonable doubt.  A ruling in Souliotes’ favor would likely lead to additional hearings on his habeas corpus petition, and eventually a chance at a new trial. 

Regardless of Judge Seng’s decision, Souliotes, now in his early 70s, has months or even years of legal wrestling ahead of him before he finds any sense of justice. 

Justice, like time, may pass him by.

George Souliotes and Todd Willingham are just two tragic cases that represent the tip of an iceberg.

People are languishing in prisons across the country because fire investigators and prosecutors used arson evidence that was no more than a hunch.  Because of new research, courts no longer accept these bogus conclusions; or put more precisely, defense attorneys are now better able to attack unscientific conclusions when they are made.

But that doesn’t help those already convicted.  Unless their cases are reviewed they are going to stay right where they are: innocent people serving long prison sentences. 

Case by case review is not an easy process.  Each case requires a painstaking review of documents, testimony and photographs by experienced attorneys and investigators.  But there is simply no other way. 

The alternative is to ignore the fact that innocent people are serving long prison sentences for accidental fires misidentified as arson.  Once properly identified, these cases should be eligible for an expedited clemency review process.

Seeking justice through an appeals process that takes a dozen or more years is no justice at all.

Paul Bieber is a criminal defense investigator for the San Mateo County (CA) Private Defender Program and the director of The Arson Research Project.  His blog and more information about the research project can be found at www.Thearsonproject.org. He welcomes comments from readers.

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Posted by Deborah Munson
Saturday, April 07, 2012 09:42

Thank you for showcasing this travesty. I live in Texas where the death penalty is freely used. Todd Willingham’s execution was nothing short of murder by those in charge of this state. There was ample evidence at that time to stay his execution. I was a Republican, but not anymore – I’m independent now and have a heart for prison reform, reentry and expediting case reviews for those caught up in this crazy, demeaning and money making prison system that people in this country ignore.

Posted by Dr John Hall
Tuesday, April 03, 2012 11:37

Mr. Bieber is to be commended. Not only is this Viewpoint timely and important, but his on-going work with The Arson Research Project is of the highest importance. This is a topic that needs to be addressed across the nation and in a thorough and timely manner. Innocent individuals likely remain imprisoned based on faulty scientific evidence introduced at trial. Again, Mr. Bieber is undertaking work of the highest significance and he deserves commendation. His recommendations are thoughtful and appropriate and deserving of careful consideration.
Dr. John A. Hall
Chapman University School of Law

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