Saturday, December 18, 2010

Sniffing and Sampling Only One Spot at Fire Scene Gets Arson Conviction Thrown Out, or How Not to Respond to Canine Evidence

I don’t know if anyone keeps statistics comparing the type of evidence and the percentage of cases where ineffective assistance of counsel is eventually argued, but if they do I’d be willing to bet that where canine evidence is a significant part of the prosecution’s case, claims of ineffective counsel after convictions are very high. Far too often lawyers, jurors, and judges take the handler’s testimony as gospel. One judge who doesn’t is Judge Nancy Gertner of the federal district court of Massachusetts.

In 2006, James Hebshie was convicted of arson for a 2001 fire in a building where he had a convenience store in Taunton, Massachusetts, and sentenced to 15 years in prison. After exhausting his appeals, Hebshie filed a petition for a writ of habeas corpus based on ineffective assistance of counsel. Judge Gertner analyzed the evidence and delivered a withering condemnation of the lawyers who had represented Hebshie in the criminal trial. The judge's analysis provides something of a manual on how NOT to represent someone accused of arson where a significant part of the government's case depends on the alert of an accelerant-detection dog.

Fire and Investigation
Hebshie’s store, Main Street Lottery & News Store, was one of three businesses a building on Main Street in Taunton, Massachusetts. Hebshie left the store at 1:37 on Saturday, April 21, 2001, and a motion detector alerted within the store at 1:44 p.m., seven minutes later. A police officer noticed smoke coming from the store about the same time. An officer of the Taunton Fire Department entered the building and moved towards an “orange glow” at the back of the store. The fire had spread and it took several hours to put it out.

Burn patterns suggested to a fire investigator that the fire had started in the left-hand wall of the store. An accelerant-detection dog, Billy, was brought to the location by his handler, Sergeant Lynch of the Massachusetts State Police. Billy alerted to one spot along the wall where the fire investigator thought the fire had begun, but this was the only place where Billy was taken because it was the only place that was safe. A carpet sample was taken for laboratory analysis from the spot. The dog was not taken to the basement or to any other areas in the building, nor were samples taken from other areas for laboratory analysis. Laboratory analysis identified the sample as containing a light petroleum distillate. Further tests that might have identified more specific chemicals were not performed.

The day after the fire, the fire investigator released the building to the insurance company, which soon demolished it. An insurance company investigator had intended to take pictures in the basement but the demolition happened too quickly.

Pre-Trial Developments
About a year after the fire, Hebshie was indicted for arson, mail fraud, and use of fire to commit a felony. Assigned counsel hired two forensic experts, a fire protection engineer, John Titus, and a chemist, Michael Higgins. In 2005, Hebshie replaced assigned counsel with counsel he had retained, John T. Spinale, who hired his son as co-counsel. Higgins was not used by the Spinales but Titus was. Titus testified that he warned the Spinales about weaknesses in the government’s case, including the fact that an accelerant-detection dog might alert to chemicals that are part of the ambient environment. Titus also argued that the laboratory should have been asked to attempt to identify the specific light petroleum distillate and that samples should have been taken from other places in the building. He told the Spinales that the laboratory test was probative only if it identified an accelerant that was not present elsewhere in the store.

Let the Judge Gertner’s disgust speak for itself:

"Despite these warnings, the Spinales never filed any pretrial motions (except motions to obtain incidental relief from Hebshie's pretrial release). There were no motions in limine, no motions directed to the expert testimony whatsoever. They never requested a Daubert hearing to challenge the bona fides of the Domingos investigation or the canine evidence, never moved in limine to exclude the laboratory analysis because of the generality of its conclusions and the lack of a control sample."

Criminal Trial
The government’s theory at the criminal trial was that Hebshie burned down his store to collect on a $30,000 insurance policy. Hebshie had lost his license to sell lottery tickets because he owed $5,000. He was trying to sell the store at the time of the fire. The defense theory was that the fire had started accidentally.

Fire Investigator. Sergeant David Domingos, who was soon on the fire scene, ruled out the two other stores in the building as possible points of origin, finding that the heavy damage and charring, the damage near the floor level, and a V pattern on the left-hand wall of the convenience store all pointed to this as the point of origin. Domingos admitted on cross-examination that this area was also surprisingly intact. He also admitted that V patterns can have different origins and that the V pattern was hard to tell in any case. Domingos discounted the theory that the fire could have started in the basement though his report did not mention the basement. He also described a “burnt toast” smell being mentioned by several witnesses, including the owner of the jewelry store in the building, about an hour before the fire and acknowledged that this could have been due to an electrical problem. He could not explain why no control samples taken from other parts of the store or the building.

A fire department official testified that one of the firefighters had a heart attack trying to put out the fire, which was not objected to by the Spinales, but should have been because it was probably both prejudicial and irrelevant.

Dog Handler. Sergeant Douglas Lynch testified about his experience as a dog handler and about Billy, the dog in this case, who had died before the trial. He said that Billy was “visibly more confident in her alerting on something than on other occasions.” In cross-examination, Lynch testified Billy had been 97% accurate, and said that even when she was wrong it was the handler’s error rather than hers. No reports or tests concerning the dog were introduced and the Spinales did not challenge the accuracy of the statistic or cross-examine concerning false negatives or other issues that might have been raised from scientific literature. The trial judge almost asked for a challenge on the canine testimony. The following is from the trial transcript:

THE COURT: I wanted to make sure I didn’t miss anything here, there was no challenge to the canine evidence, to the dog?


In the convenience store fire, Lynch only took Billy to the area where Domingos concluded the fire had started, which he described as the more “intact portion” of the store. Billy gave a strong alert at that location and Lynch took a sample from that area, but not from other areas, apparently because Domingos had not requested that he take comparison samples.

Laboratory Technician. John Drugan, a laboratory technician, testified that he used a gas chromatograph flame ionization detector to class the sample as having a light petroleum distillate. Drugan admitted that using a comparison sample is “preferred practice” but the Spinales did not challenge the reliability or admissibility of the test and even stipulated to the lab results. In the habeas hearing that followed years later, Judge Gertner wrote that "a reasonably competent counsel would have challenged the test results of 'light petroleum distillate' and their characterization as accelerants."

Fire Protection Engineer. John Titus, testifying for the defense, said that the left-hand wall was the only wall of the store that had not collapsed. He pointed to burn patterns suggesting the fire began in the basement and that the fire broke into the convenience store after moving through the walls. He could not present evidence of the basement’s condition and there were no photographs, samples, or notes about the basement in Domingos’ report.

Closing Arguments. The government closed by arguing that Billy had alerted to the left-hand wall to the exclusion of other areas, which was not correct. The Spinales did not object to this mis-characterization of the handler’s testimony. Indeed, the elder Spinale described Domingos as “very qualified” and said that Lynch and Billy were “impressive.” He also said that there was not much difference between the experts for each side, probably undermining the distinctions his expert had made.

Verdict and Appeal
The jury found Hebshie guilty on all counts and he was sentenced to 15 years in prison. His conviction was affirmed by the First Circuit. U.S. v. Hebshie, 549 F.3d 30 (1st Cir. 2008). This appeal, however, had little to do with the arson case and was mostly about another aspect of the conviction for mail fraud regarding Hebshie’s attempt to collect insurance on the store.

Habeas Corpus
Hebshie then sought to establish that his counsel’s performance was deficient, resulting in prejudice. The competence of the Spinales was now the focus of the testimony and a major issue was why they had not brought a Daubert challenge to the cause-and-origin testimony and the arson evidence.

Judge Gertner found the Spinales’ explanations of their trial strategy so deficient that she was quite blunt in criticizing them: “I do not credit Jay Spinale's testimony at all. He admitted that he had taken pains not to prepare for the evidentiary hearing in any way; he had reviewed nothing.”

Insurance Company Investigator. Daniel Cronin, the insurance investigator, took one photograph that John Titus, did not see until the habeas corpus hearing. Its significance was summarized by the Judge Gertner:

"Cronin did, however, take one photograph of the stairs leading down to the basement….In fact, it was a photograph with a fuller view of the stairwell. Spinale never asked for any of the photographs from the insurance investigation. Titus testified that he had never seen the insurance photographs until the evidentiary hearing. And the photographs were significant. They showed that the lintel, the bar by the basement staircase that supports the floor, was charred and had significant soot deposits on it, indicating that fire came out of the basement." (emphasis added)

A new witness, John Lentini, a forensics arson expert, testified that the government’s theory of the fire’s movement was scientifically impossible. He believed it was far more likely that the fire began in the basement.

Canine Evidence. In the habeas hearing, the canine evidence was considered again. Judge Gertner noted that the National Fire Protection Association’s Guide for Fire and Explosives Investigations, referred to as NFPA 921 by firemen and investigators, says that arson dogs are tools to narrow the search area for ignitable liquids. Titus testified that he had told the Spinales about weaknesses in canine evidence and provided them with research indicating dogs had varying levels of reliability depending on the substances in a sample. He pointed out to the Spinales that some substances arson dogs alert to are actually common in the environment. Lentini said that the convenience that the store sold glue and lighter fluid that could be detected by a dog. He quoted NFPA 921:

"The collection of comparison samples is especially important in the collection of materials that are believed to contain liquid or solid accelerants. For example, the comparison sample for physical evidence consisting of a piece of carpeting believed to contain a liquid accelerant would be a piece of the same carpeting that does not contain any of the liquid accelerant. Comparison samples allow the laboratory to evaluate the possible contributions of volatile pyrolysis products to the analysis and also to estimate the flammability properties of the normal fuel present."

Lentini noted that the area where the carpet sample was taken from was "in very good shape for a carpet that supposedly had ignitable liquid put on it."

Judge Gertner's Analysis
On an ineffective assistance of counsel claim, the applicant must show that his counsel's performance was deficient and that he suffered prejudice as a result. Judge Gertner did not find a complete failure by the defense counsel, though noting that "candidly, counsel's performance came close," but found most fault in counsel's failure to move for a Daubert hearing or attempt to exclude the arson evidence.

Daubert. Scientific evidence must not only be relevant, but reliable, and, under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the court must conduct “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Such a hearing should have been requested here. Judge Gertner stated:

"Despite ample reasons for defense counsel to be on notice of serious problems with the government's expert evidence--from Titus, from Muse, arguably from their own investigation--they did not request a Daubert hearing as to anything. They knew that there were problems in the Domingos cause-and-origin investigation and the Drugan laboratory analysis that undermined their validity; they knew that the failure to take a control sample in this case was inconsistent with the scientific method and NFPA 921 ...(governing collection of comparison samples); they knew that the investigation of the basement was inadequate, or at least, not fully documented; and they knew or should have known that the canine evidence was supposed to be admitted for only a limited purpose, namely, assisting in the selection of samples that have a 'higher probability of laboratory confirmation than samples selected without the canine's assistance,' and that testimony beyond those purposes was potentially prejudicial...." (emphasis in original)

The judge described the Spinales has having demonstrated a "lack of preparation, even thought," and cited substantial legal and scientific literature that the Spinales should have become at least somewhat familiar with regarding arson evidence. Further:

"Spinale could not have reasonably believed that a Daubert hearing was waived when the Court asked him over and over again if he wanted such a hearing-even mid-trial. Indeed, the government's claim that Spinale did not move for a hearing because he feared the Court would be aggravated is absurd. This Court explicitly invited the challenge so that critical scientific issues could be hashed out outside of the presence of the jury."

The judge cited a federal district court case from West Virginia, which held that "the use of the dog alert as substantive evidence is beyond the accepted scope and application of the technique as described in the NFPA guide." U.S. v. Myers, 2010 WL 2723196 (S.D.W.Va. 2010). The Spinales should have objected "to all statements that suggested that the alert had any validity beyond helping the fire investigators to choose samples."

The Spinales should have also objected to the handler's "truly extravagant testimony about Billy, the dog, her powers, her accuracy, her role in accelerant-detection in general and in this case, and to the government's closing." The judge referred to scientific articles indicating substantial error rates in canine alerts, which were never raised by the Spinales.

Prejudice. In describing how Hebshie was prejudiced by the Spinales' representation, Judge Gertner said that there was a reasonable probability the criminal trial court would have granted a Daubert hearing if it had been requested, and from such a hearing or on objection would have excluded the laboratory accelerant sample test, would have excluded the canine evidence "or severely limited it," and would have reduced the significance of the cause-and-origin testimony. Without this evidence, there would essentially "have been no case at all," making it reasonably probable that the outcome of the trial would have been different.

The U.S. Attorney's office has filed a notice of appeal. Hebshie will appear at a status conference in federal court in Boston on December 29.

There is something of a conceit in many TV crime shows that lawyers in private law firms must come in and save the day from overworked and less competent legal services lawyers. This has been an ongoing theme in The Good Wife, a show with excellent writers, who are either lawyers themselves or whose work must be checked by lawyers. Nevertheless, sometimes the client should stick with the court-appointed lawyer, as may have been true here.

I should point out that though this case was a poor example of accelerant detection canine procedure, there are many cases where the alerts of such dogs have been carefully considered and admitted. This is not the place to review a broad range of accelerant detection cases, but that is something I will do in the book I am working on with the help of Tadeusz Jezierski, L.E. Papet, John Grubbs, Greg Keller, and others regarding canine forensics and law.

U.S. v. Hebshie, 2010 WL 4722040 (D.Mass. 2010).

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