William Halliday was convicted of first degree arson and insurance fraud for setting his house on fire and attempting to collect insurance money. We are given no description of the events behind the fire by the Alaskan appellate court to which Halliday appealed his conviction. Rather, the appellate court focuses on Halliday’s assignment of error to one crucial piece of evidence, the testimony of an arson dog handler and a demonstration conducted by that handler with her dog before the jury.
Deputy Fire Chief Bridget Bushue testified that she used Jodi, an accelerant detection dog, to find places from which samples were taken for laboratory testing. The trial judge, Philip R. Volland of the Superior Court in Anchorage, also allowed Burshue to conduct a courtroom demonstration with Jodi, showing how the dog alerted to areas from which samples were then taken for analysis. Halliday argued on appeal that Judge Volland erred in allowing this demonstration.
Prosecution and Trial
Prior to trial, the prosecution gave notice that it intended to call Bushue as an expert witness and asked permission for her to conduct a demonstration before the jury that would explain how the dog was used to collect samples to be sent for laboratory analysis. Judge Volland first required that the demonstration be given without the jury present. Bushue placed Q-tips around the courtroom, some with accelerant on them, some without. Bushue further explained that Jodi had been certified since 2004, that she had never failed a scent-detection test, and that she had never alerted to a false positive.
The defense counsel objected to the demonstration “on the ground that the demonstration was not sufficiently similar to the actual investigation that was conducted. He argued that the demonstration would be prejudicial because the dog was cute, and he asserted that there was no particular reason to conduct this demonstration for the jury.”
Judge Volland concluded that Jodi’s “training and certification and prior successful track record” showed that the dog was “sufficiently reliable as a tool in fire investigation.” It is not stated whether defense counsel attempted to obtain and review the canine team's training, certification, or field records, since the only mention of the dog’s qualifications appears to have been given by the handler in testimony. Nor is any cross-examination described. The objection that the dog was “cute” has been made by defense attorneys in cases where therapy dogs help children testify in abuse cases, but may have been worth making as part of the argument regarding the prejudicial nature of the demonstration.
As to the demonstration:
“[Judge Volland] acknowledged that the demonstration in the courtroom was not the same as what Jodi would actually do in a fire investigation, but he concluded that, in spite of the difference, the demonstration would help the jurors to understand this part of the fire investigation. Judge Volland determined that the demonstration would not be unduly prejudicial. And he thought that the demonstration would be useful to show how the fire investigators decided to send certain samples from the fire scene to the laboratory to test whether residues that indicated accelerants were present on these samples.”
On the stand, Bushue qualified as an expert without objection. Given the fact that Bushue was going to make a potentially damaging demonstration, defense counsel may have made a strategic mistake in not questioning her qualifications. Bushue did not remember if she was called the same day of the fire or the day after, a curious lapse given that she would presumably have been well prepared for the witness box. Inside the house, Jodi alerted to a pile of debris, to the couch, and to an area in the kitchen. Samples were taken from these locations to the Alaska State Crime Laboratory and tested for accelerants. The lab found accelerants in three of the seven samples provided.
It is not clear if the defense questioned why four of seven samples were apparently taken from places where Jodi alerted but where no accelerants were detected in the laboratory. Was Bushue asked if these were false positives? Was any lab technician asked about his knowledge of how the samples were obtained? Did the lab have the same infallible experience with samples selected by the dog’s alerts as the handler described? Unfortunately, the appellate court’s summary of the record is sparse on some crucial issues.
Bushue then conducted the Q-tip demonstration. Apparently Bushue herself placed the Q-tips around the courtroom. It is not clear if she knew which Q-tips were scented with accelerants and which were not. If she did know, the demonstration was practically useless and should have given rise to an objection based on the possibility of cueing. There is no indication that the defense argued that someone besides Bushue place—hopefully hide—the Q-tips, and out of her presence. To make the experiment truly double-blind, everyone should have been removed from the courtroom who was going to be present during the demonstration to avoid possible third-party cueing. (See Ensminger & Papet, Cueing and Probable Cause.)
Appeal
On appeal, Halliday’s counsel made a general objection to the admission of the testimony regarding accelerant detection canines under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The appellate court upheld the trial court’s rulings on the canine testimony in a single paragraph, without addressing the scientific objections, though it is not clear how well stated those objections were. The court’s concluding paragraph reads in full:
“We conclude that Judge Volland did not abuse his discretion in admitting the testimony and in permitting the demonstration. All that the testimony and the demonstration showed was how the fire investigators decided where to select samples from Halliday's residence to send to the laboratory for testing. Ultimately, it was the laboratory testing that determined the presence of accelerants. Accordingly, the testimony and the demonstration with Jodi were not prejudicial.”
Concurrence
Judge Mannheimer of the appellate court concurred, emphasizing that in finding the dog sufficiently reliable as a tool in a fire investigation, Judge Volland had made an irrelevant statement because neither Bushue nor the prosecutor had asked the jurors to rely on the dog’s detection skills as proof that the physical samples taken from Halliday’s house contained accelerants. Instead, the state relied on the subsequent laboratory analysis.
Judge Mannheimer further argued that "it ultimately made no difference to the State's case whether Deputy Chief Bushue selected the samples by using her dog, or by throwing darts, or by closing her eyes and collecting samples at random." Yet despite the ultimate reliance on the laboratory analysis, the lack of randomness in the selection of the samples quite likely convinced the jury that the dog detected not only that accelerants were used but also exactly where they were placed. This could well have given an impression of infallibility to the whole forensic process as to which the laboratory analysis was only the crowning moment.
Judge Mannheimer stated that “the demonstration of the dog’s prowess had very little relevance to the issues litigated at Halliday’s trail, and a good argument might be made that the demonstration was a waste of time.” Still, Mannheimer concluded that the demonstration was apparently a harmless, though perhaps entertaining, digression at trial. It could also be argued that if the demonstration was a waste of time, the possible prejudice involved should have resulted in its exclusion.
Observations
It is difficult to criticize a case that gives such little support to its own conclusions, and indeed provides so little background concerning the crime and the trial. Nevertheless, the demonstration with the dog gave an impression of infallibility: the dog finds the samples, the samples go to the lab, the lab verifies the presence of accelerants, and justice is done.
The demonstration was vastly different from the way a dog works at a fire scene. The dog will smell all kinds of substances, some of which, like some types of carpeting, may contain chemicals used in accelerants. (See sources cited in Police and Military Dogs, page 243.) Was this investigated by the defense? Further, the handler does not know where the accelerants might be found in a fire scene, unless there is other evidence, such as a splatter or burn patterns. Were the Q-tips visible to the dog or the handler in the courtroom? Why could they not have been hidden by someone else? Did the defense make any such suggestions?
In the fire scene investigation, why were four samples sent to the lab that did not produce accelerants? Were samples taken from areas where the dog did not alert but was allowed to smell in order to see if the dog made any false negatives? The minimalism of the decision raises more questions than are answered.
Our comments are not a criticism of Bushue’s method of investigating the fire. Accelerant detection dogs, as discussed in the chapter on accelerant detection in Police and Military Dogs, should be used to find places from which samples can be taken. They should be, as Jodi was here, a preliminary step in the investigation. Their use, however, should not be glorified as was done at trial here.
Halliday v. Alaska, 2011 WL 4107684 (September 14, 2011)
This blog was written by John Ensminger and L.E. Papet.
Showing posts with label accelerant detection dogs. Show all posts
Showing posts with label accelerant detection dogs. Show all posts
Wednesday, October 12, 2011
Saturday, January 22, 2011
Arson Dog Helps Send Couple to Prison, Saves Chubb Insurance Co. Millions
A home security company notified several fire departments that a smoke detector at a house in Alexandria Township, New Jersey, was signaling. Emergency personnel arrived to find an intense fire burning down the 6,000 square foot residence. The owners, the Kellers, were outside. They had no injuries and their clothes showed no sign of soot or fire damage. They explained that they had awakened by the fire alarm and the smell of gasoline and told a state trooper that there had been gasoline in the garage and on the front porch. They told the trooper that the house had been listed for sale at $1 million because they had recently moved to Virginia. They asked to leave to go to a nearby motel. Trooper Sanders saw clothing and personal belongings inside their van.
The Kellers arrived at the Kingswood Police Station the next morning, where a detective asked permission to search their van. It was explained that consent was being sought to examine the vehicle and the Kellers’ clothing for accelerants. They agreed to the search. The police called the Morris Country Sheriff’s Office and asked to use Detective Richard Warnett and his arson dog, Hoka, to search the vehicle. The dog alerted inside the van on the rear floor behind the passenger side front seat, as well as in the rear cargo area. The dog did not alert to the Kellers' clothing but did alert to Irlene Keller’s shoes. At the scene of the fire, Hoka alerted to the floor area near the remains of the fireplace. This was consistent with the findings of a detective from the state police arson/bomb unit, who believed that irregular burn patterns suggested that an accelerant had been used. Three gasoline containers were also found. The detective concluded that “a flammable liquid substance” had been poured through the house. The detective also noted that there was not much personal property in the residence.
The state police detective obtained a warrant. On a search of the basement, “he detected a strong smell of chemicals. He located an empty, uncapped one-gallon container, labeled 'Parks xylene,' that had been turned upside down. Detective Ditzel knew xylene, a paint thinner, was an accelerant having almost the same chemical properties as gasoline. The container, lid, and samples of the liquid found on the floor were turned over to the New Jersey State Police Laboratory for testing.” A search of three detached barns revealed a considerable amount of personal property in boxes, items that might have rather been expected to be found in the house.
Laboratory tests of Irlene Keller’s shoes and nightgown tested positive for xylene, but it could not be ruled out that the chemical might have been used in their manufacture.
The Kellers submitted a fire loss claim for $1.7 million to the Chubb Insurance Company for the loss of the house and its contents. A senior adjustor denied the claim based on its own investigation and the facts uncovered by local authorities indicating that the fire was arson.
An agent with ATF found that the Kellers had purchased a home in Virginia shortly before, refinancing their New Jersey home to withdraw its equity for the necessary funds for the purchase.
The Kellers were prosecuted for aggravated arson, theft by deception, and conspiracy, and found guilty by a jury. They were sentenced to eight years in prison. Irlene Keller appealed her conviction, based largely on an argument that her consent to the search was not voluntary. The New Jersey appellate court rejected this and related arguments, and affirmed the conviction of the trial court. State v. Keller, 2010 WL 5346025 (N.J.App.Div. 2010)
According to news reports, the Kellers were sentenced in 2007 and paroled in 2009.
The case demonstrates that accelerant detection dogs are useful both to prosecutors and insurance companies. There was a good deal of non-canine evidence here, but insurance companies have not always carried the day. See Farm Bureau Mutual Insurance Co. of Arkansas, Inc. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000).
The Kellers arrived at the Kingswood Police Station the next morning, where a detective asked permission to search their van. It was explained that consent was being sought to examine the vehicle and the Kellers’ clothing for accelerants. They agreed to the search. The police called the Morris Country Sheriff’s Office and asked to use Detective Richard Warnett and his arson dog, Hoka, to search the vehicle. The dog alerted inside the van on the rear floor behind the passenger side front seat, as well as in the rear cargo area. The dog did not alert to the Kellers' clothing but did alert to Irlene Keller’s shoes. At the scene of the fire, Hoka alerted to the floor area near the remains of the fireplace. This was consistent with the findings of a detective from the state police arson/bomb unit, who believed that irregular burn patterns suggested that an accelerant had been used. Three gasoline containers were also found. The detective concluded that “a flammable liquid substance” had been poured through the house. The detective also noted that there was not much personal property in the residence.
The state police detective obtained a warrant. On a search of the basement, “he detected a strong smell of chemicals. He located an empty, uncapped one-gallon container, labeled 'Parks xylene,' that had been turned upside down. Detective Ditzel knew xylene, a paint thinner, was an accelerant having almost the same chemical properties as gasoline. The container, lid, and samples of the liquid found on the floor were turned over to the New Jersey State Police Laboratory for testing.” A search of three detached barns revealed a considerable amount of personal property in boxes, items that might have rather been expected to be found in the house.
Laboratory tests of Irlene Keller’s shoes and nightgown tested positive for xylene, but it could not be ruled out that the chemical might have been used in their manufacture.
The Kellers submitted a fire loss claim for $1.7 million to the Chubb Insurance Company for the loss of the house and its contents. A senior adjustor denied the claim based on its own investigation and the facts uncovered by local authorities indicating that the fire was arson.
An agent with ATF found that the Kellers had purchased a home in Virginia shortly before, refinancing their New Jersey home to withdraw its equity for the necessary funds for the purchase.
The Kellers were prosecuted for aggravated arson, theft by deception, and conspiracy, and found guilty by a jury. They were sentenced to eight years in prison. Irlene Keller appealed her conviction, based largely on an argument that her consent to the search was not voluntary. The New Jersey appellate court rejected this and related arguments, and affirmed the conviction of the trial court. State v. Keller, 2010 WL 5346025 (N.J.App.Div. 2010)
According to news reports, the Kellers were sentenced in 2007 and paroled in 2009.
The case demonstrates that accelerant detection dogs are useful both to prosecutors and insurance companies. There was a good deal of non-canine evidence here, but insurance companies have not always carried the day. See Farm Bureau Mutual Insurance Co. of Arkansas, Inc. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000).
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?
MR. SPINALE, JR.: No.
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.
Conclusion
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).
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?
MR. SPINALE, JR.: No.
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.
Conclusion
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).
Friday, March 5, 2010
Types of Detection Dogs--How Many Can You Name?
When I began working on Service and Therapy Dogs in American Society, I was soon struck by the proliferation of service dog types, including the fairly recent category of hypoglycemia alert dogs and the still anecdotal migraine-alert dog category. This is nothing compared to the list of scenting dogs that were assembled by a group of chemists in 2004. They came up with 30 scent detection dog categories. Some of these categories probably only represent a few dozen dogs, but many of them are essential to law enforcement and are found throughout the world. The categories are:
1. Abalone (endangered mollusk poaching) detector dog
2. Agricultural product (importation) detector dog
3. Arson (accelerant) detector dog
4. Brown tree snake (pest species) detector dog
5. Airport/runway detector dog
6. Cadaver (human remains) detector dog
7. Chemical weapon detector dog
8. Citrus canker detector dog
9. Concealed person detector dog
10. Currency detector dog
11. Drug (narcotic) detector dog
12. Explosives (bomb) detector dog
13. Gas leak detector dog
14. Gold ore detector dog
15. Gun/ammunition detector dog
16. GYPSY moth larvae detector dog
17. Land mine trip wire detector dog
18. Melanoma detector dog
19. Missing person detector dog
20. Rotten power pole detector dog
21. Scent line-up detector dog
22. Screw worm detector dog
23. Seal detector dog
24. Search and rescue (warm blood) detector dog
25. Syringe needle (dried blood) detector dog
26. Termite detector dog
27. Tracking (fleeing suspect) detector dog
28. Truffles detector dog
29. Water search detector dog
30. Wildlife detector dog
The list was compiled for an article in the Journal of Analytical and Bioanalytical Chemistry. Lorenzo, N., Wan, T.L., Harper, R.J., Hsu, Y.L., Chow, M., Rose, S., and Furton, K.G. (2004). Laboratory and Field Experiments Used to Identify Canis lupus var. familiaris Active Odor Signature Chemicals from Drugs, Explosives, and Humans. Analytical and Bioanalytical Chemistry, 376: 1212-1224.
For more on the use of detection dogs in conservation projects, see Brown, C., Stafford, K., and Fordham, R. (2006). The Use of Scent-Detection Dogs. Irish Veterinary Journal, 59(2), 97-104. dogs have been used to find dead bats at wind farms. Arnett, E.B. (2006). A Preliminary Evaluation on the Use of Dogs to Recover Bat Fatalities at Wind Energy Facilities. Wildlife Society Bulletin, 34(5), 1440-1445. They have also been trained to detect microbial growth in buildings, which can cause respiratory and other symptoms in occupants. Kauhanen, E., Harri, M., Nevalainen, A., and Nevalainen, T. (2002). Validity of Detection of Microbial Growth in Buildings by Trained Dogs. Environmental International, 28, 153-7. A master's thesis filed with South Dakota State University studied dogs trained to find ferrets. The thesis was adapted into an article Reindl, S.A. et al. (2006). Efficacy of Scent Dogs in Detecting Black-Footed Ferrets at a Reintroduction Site in South Dakota. USDA National Wildlife Research Center Staff Publications; Kerley, L.L. and Salkina, G.P. (2006). Using Scent-Matching Dogs to Identify Individual Amur Tigers from Scats. Journal of Wildlife Management, 71(4), 1349-1356 (a unique study in that the dogs were not trained just to recognize tigers, but also to identify individual tigers).
In the Federal Register of October 2, 2013, the Fish and Wildlife Service reported that dogs had been used in an attempt to identify and locate potential natural roosts of the bonneted bat in Florida. 78 Fed. Reg. 61004 (October 2, 2013), at 61007 and 61018. The dogs were obtained from Auburn University's EcoDogs.
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