Flawed Forensics in Arson Cases: One Executed, One on Death Row, Four in Prison
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The question hangs like ugly morning moss from a large swamp oak tree: Did the State of Texas execute an innocent man when it put Cameron Todd Willingham to death on February 17, 2004? Just last month the Texas Forensic Science Commission ruled that Willingham’s August 1992 murder conviction was based on flawed forensic evidence. The Willingham case—and the way it has been handled by state officials and in particular Tex. Gov. Rick Perry and especially by Willingham’s former defense attorney—has proven to be a national and international embarrassment to the state’s criminal justice system.
And just as the Texas Forensic Science Commission is trying to undo some of the damage caused by the wrongful conviction and execution of Willingham, we learn that the State of Pennsylvania now finds itself in the peculiar position of having to deal with a death penalty case that mirrors the Willingham case. Like Willingham, Daniel Dougherty was an excessive drinker who abused his wife but loved his children—and like Willingham, Dougherty was forced to watch his two children (Danny 4 and Johnny 3) die in a fire that destroyed his home in 1985, according to a recent CNN report.
Today the 50-year-old Dougherty sits in a prison in Waynesburg, Pennsylvania—a prison that state officials told CNN’s Stephanie Chen houses “the worst of the worst”—awaiting execution. Although Willingham was arrested and indicted a little over a month after the December 1991 residential fire that took the lives of his three children, Dougherty was not arrested until 14 years after the fire that killed his two children and only after his estranged wife told the authorities he had “confessed” to her that he deliberately set the fatal fire.
Like Willingham, Daniel Dougherty has also maintained his innocence from the day of his arrest. His attorney claims that Dougherty, like Willingham, was convicted on the same kind of “flawed arson science” that sent the Texas inmate to the state’s death chamber. “We have an innocent man on death row who has been languishing there, and there is absolutely no evidence that a crime occurred,” Dougherty’s attorney, David Fryman, told CNN. “We’ve been trying our best to right that wrong.”
Dougherty’s case is currently pending before the Pennsylvania Supreme Court. Two forensic fire experts, John Lentini and Angelo Pisani, have re-examined the forensic evidence in the case and found no indications of arson. These two arson experts have “conducted thousands of fire scene investigations,” reported CNN. They were contacted five years ago by Dougherty’s attorneys asking that the two experts review the evidence in their client’s case. The request came shortly after the Chicago Tribune reported in December 2004 that Lentini had been hired by the newspaper as one of the experts who re-examined the evidence in Willingham’s case and determined it was flawed. Lentini’s findings in the Dougherty case were almost identical to those in Willingham’s case: that state arson investigators had utilized “outdated arson investigation techniques” to conclude that the Dougherty fire had been intentionally set.
In 1992 the National Fire Protection Association (“NFPA”), a fire safety organization, adopted new arson investigation techniques that were slow to be embraced by many state fire marshals, including the ones in the Willingham and Dougherty cases. The NFPA has pointed out that the 1992 investigation techniques have had either a dramatic impact on the number of structure fires classified as “intentional” or the number of intentional fires have simply dwindled—down from 200,000 in 1980 to 55,000 in 2007.
The Philadelphia assistant fire marshal who initially investigated the Dougherty fire in 1985 filed a report which said the fire in Dougherty’s brick residence had three points of origin: one by a sofa, another near a love seat, and the third under the dining room table. Based on these multiple points of origin, John Quinn concluded that the fire had been intentionally set.
Lentini vigorously disputes this arson conclusion. “There is no evidence that it is arson,” he told CNN. “The only evidence [Quinn] has is his three points of origin and those three points of origin are a figment of his imagination.” Pisani agrees, saying that the “multiple burning spots” were probably the result of a “flashover”—a natural phenomenon that occurs when an enclosed room gets so hot, temperatures as high as 1,100 degrees Fahrenheit, that the room combusts creating different burning points.
Pisani and Lentini told CNN that such flashovers can lead some arson investigators to believe that there were multiple points of origin of the fire when actually it was flashover simply creating an “appearance” of multiple “burn” or “pour” points. For this reason, the two experts said that the State of Pennsylvania is “on their way to executing an innocent man.”
Despite all the controversy surrounding the Willingham execution, with at least seven nationally renowned fire experts saying he was executed because of flawed forensic science, Philadelphia’s First Assistant District Attorney Joseph McGettigan told CNN that his office has “rejected Dougherty’s claims of innocence” and believes that “the jury’s verdict was a proper one.”
ADA Gettigan’s reasoning defies normal logic. His office did not file charges against Dougherty in 1985 after John Quinn concluded the fatal fire had been deliberately set. Prosecutors waited fourteen years until the estrange wife, who certainly had a grudge against Dougherty after their estrangement, came forward with the “confession” story. But the ex-wife’s confession story simply does not square with statements provided by Dougherty’s family who described the deep love and commitment he had for his children. The family’s statements are supported by a neighbor who said Dougherty did everything humanely possible to extinguish the fire, including using her garden hose in a futile effort to put out the flames. “He was so destroyed,” neighbor Judy Sorling, told CNN. “He kept yelling for help” as he tried to save his children.
“There can no longer be any doubt that an innocent person has been executed,” Barry Scheck, co-director of the New York-based Innocence Project, told CNN, referring to Willingham’s execution. “The question now turns to how we can stop it from happening again.”
Just last September the Dallas Morning News reported that besides the Willingham case, there are four other Texas arson cases under scrutiny as possible wrongful convictions. The first involves the capital conviction and death sentence given to Earnest Willis for the 1986 fire in Iraan that killed two women. Willis was eventually granted a new trial and in 2004 a new district attorney dismissed the charges against him after the Austin fire scientist, Gerald Hurst, concluded, just as he had in the Willingham case, that Ellis had been convicted based on flawed forensic evidence. The second case involves Ed Graf who was convicted and sentenced to life imprisonment for setting fire to a backyard shed in 1986 that killed his two stepsons. He remains in prison with all his appeals virtually exhausted. The third case involves Garland Leon “Butch” Martin who was convicted of capital murder and sentenced to life imprisonment for the 1998 fire that killed his wife and their two children. The fourth case involves Curtis Stevens who was convicted in federal court and given a 25-year sentence for the arson fire that destroyed his gun shop. The evidence used in each of these cases, like Willingham/Dougherty cases, has been called into question because they involve the same kind of “pour” or “burn” patterns that indicate multiple points of origin which could have been caused by flashovers.
These cases are by no means anomalies. The Victims of the State website, a site dedicated to posting information about the wrongly convicted, lists 30 arson murder cases in which the State used flawed forensic evidence, withheld exculpatory evidence, or used perjured testimony to convict people for arson murder and thereby raising serious doubt about their guilt. We cannot positively say that the five Texas cases cited by the Dallas Morning News, or the Pennsylvania case involving Daniel Dougherty, or most of the cases cited by Victims of the State involve innocent defendants. But what we can positively say is that they were all wrongfully convicted, and it is more probable than not, especially in the Willingham case, that most were likely innocence.
The Willingham and Dougherty cases convince us that all arson convictions in this country, especially those in which the defendants were convicted of murder, should be re-examined.
This would require bold joint judicial and legislative efforts to bring about such a review process, but the benefits to the nation’s criminal justice system would far outweigh the expenditure of time and resources involved in the conducting such case-by-case reviews. The evidence is simply too overwhelming, too compelling that there have been scores of defendants wrongfully convicted in arson-related cases for such a review not to be undertaken. The human costs of not doing so are immeasurable. The very integrity of our criminal justice system is now at stake. The system must respond to these claims of innocence like those being raised by the Dougherty case lest we have more Willingham-like injustices. We simply cannot in good conscience put people to death or keep them locked away for the rest of their lives based upon the flawed forensic evidence which resulted in their criminal convictions. We are better than that as a people, and as a nation. Or at least we hope we are.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair