#149 Wrongful Conviction: Junk Science - Arson Evidence

some last minute shopping for the girls. The babies here at the door slam and start to cry, as they typically do. You take them out of their cribs, give them each a bottle, and put them on the soft play out on the floor so they can keep each other company. You head back to your room, and as you lay down, you hear them cooing from across the hall. You drift off to sleep. You aren't asleep long. You wake up to your two year old daughter screaming, Daddy, Daddy.

You're groggy, startled, but the terror in her voice snaps you awake like a plaring alarm, and then it hits you. The room is a dense cloud of gray and black. You can barely see. You smell charcoal, ash, smoke. Oh no, your girls gifted girls out of the house. It's loud. It sounds like an angry windstorm. The entire house is crackling, popping. You make your way to the baby's rooms and feel around on the floor, groping in the darkness. You think you grab one of the twins, but it's just a

baby doll. Your hair is on fire. You stand up and pat it out and frantically get on the ground again. Then there's a loud crash. Something is falling from somewhere in the house. It must be the caving in a part of the room for a wall, but you can't see anything. It's so hot you can't breathe. You need to catch your breath before you pass out. You finally make your way outside to get help. You'll come back for them. You see your neighbor on her front lawn

and scream for her to call the fire department. She sees a hysterical man covered in soot, and she yells back there. On the way. You try to get back inside, breaking the window of the baby's room with the stick you find in the yard flames explode from the opening. Oh God, you can't get in. You're crying out for your children. Someone, anyone, please help. The fire department finally arrives and they have to hold you back. They find your two year old in the bedroom on the floor.

You didn't realize she had been right there, right there. Your babies are on the floor of their room where you had left them with their bottle. You've been so close to finding them. They try to do CPR, but it's too late. You're escorted away from the house, and once the fires under control, investigators in protective gear head inside.

There's no sense of urgency anymore. They walk through the remains and disappear into the black and living room where you had spent your last night together as a family. You are dumbfounded when they arrest you for arson murder. This was your family. You would never lay a finger on your children. At your trial, the prosecutors call expert witnesses who tell the jury that the proven signs of fire tells the story of how you committed this crime.

You pour lighter fluid, which they referred to as an accelerant, under your bay beast beds in the hallway by the front door. The burn marks seared into the floor indicate where that lighter fluid was puddled on the carpet. They say, there's no way you tried to save your girls. If you had, your feet would have been burned. Drip stains proved that you poured accelerant up and down the hallway.

The melted metal door frame, the shattered glass, it all proves the fire was so unnaturally hot that it produced temperatures that could only have been created by chemicals that you intentionally poured all over your home and your motive. Prosecutors argued this, you love heavy metal music, and that indicates that you have a dark side. You have posters on the walls of your home, one of which depicts

a grim reaper that proves you're obsessed with death. You have a tattoo of a skull and snake on your arm that indicates you're a violent person. You have psychiatric problems, perhaps a demonic disposition. You couldn't afford to hire a lawyer, so the court appointed you an attorney. He too, suspects that you killed your children. He tells you to plead guilty. If you do, they'll give you life in prison instead. Of the death sentence. You can't do this. This was

an accident. There was no crime here. You're not going to confess to killing your three beautiful children. You didn't do anything wrong here. You were convicted and sentenced to death on death row, the events of that day haunt you. You look at the photos of your children, your wife to remember the man you were, the life you once had. Time seems to stand still on death row, and the whole experience is nothing short of paralyzing. But the date

of your execution eventually closes in. You write a letter to your parents, telling them to never stop fighting to clear your name, even if it's after they put you to death. The last words of your fellow inmates, the ones who are executed before you, one by one, were often apologies. Sometimes they were confessions. But before you're strapped into the gurney and given a lethal injection, you say, I am an innocent person convicted of a crime I

did not commit. I've been persecuted for twelve years for something I did not do. From God's dust, I came into dust. I will return so the earth shall become my throne. Your parents scatter your ashes over the graves of your children. The story you just heard is based on the wrongful conviction of Cameron Todd Willingham, who was wrongfully convicted and executed in two thousand four. I'm Josh Dubin, civil rights and criminal defense attorney and Innocent's Ambassador to

the Innocence Project in New York. Today, on wrongful conviction junk science, we examine arson evidence. In three the Nixon administration published a report entitled America Burning. It was all about damage the fires caused in America, both in terms of physical destruction and the billions of dollars spent to

repair and rebuild. But unfortunately, much of what was considered fire signs and America Burning was merely a set of core assumptions that were never subjected to the rigors of the scientific method that is developed hypothesis, Test it, confirm it, reconfirment, and repeat until you know you have something sound and verifiable. As a result of this study, fire investigators were given a handbook, A Guide to reading fire damage like a

psychic reads tea leaves. An investigator, having learned from this handbook, starts his investigation at the exterior of a burnt down house. He sees a v shape burn on what's left of the walls of the living room. He notes this is the room where the fire started. He walks through the home, keeping an eye out for the telltale signs of arson. First, crazed glass windows shattered into irregular pieces with light smoke deposits that indicate a rapid build up of heat that

can only be caused by an accelerant. Second, alligatoring large shiny blisters on burntwood. Fast hot fires produced by accelerants create this pattern. Third, puddle formations and burns that look like drip trails. These are caused by the spreading of accelerant like gasoline or paint thinner throughout a house before it is intentionally set on fire. The investigator checks all of these signs off the list. He knows this must

be arson. It turns out the investigator only had a fifty percent chance of being right at best, because fire science was built on a foundation of conjecture and best guesses that were never adequately tested and confirmed according to valid scientific principles. What experts and prosecutors had been telling juries for decades aids about how you can definitively determine

that a fire was intentionally set was completely wrong. In fact, signs that indicated to investigators that they were dealing with arson, crazed glass, alligator patterns, burn marks indicating drips or puddles of accelerant, We're actually the same things left in the wake of an accidental fire. So the evidence that was used to convict Cameron, Todd Willingham, and so many others

was deeply, deeply flawed. It turns out that there was no evidence whatsoever uh that this had been a fire that was set by Todd Willingham running up and down his home, you know, just before Christmas, spreading accelerant in all the different rooms and down the hallway and killing his three children. It was clear that this was junk science. And unfortunately, by this point in my career I was familiar enough with the phenomenon of junk science not to

be surprised. Joining us today to tell us about arson evidence and how it relates to cases like Cameron Todd Willingham's is Barry Scheck, co founder of the Innocence Project and famed civil rights and criminal defense attorney. So Barry, first, thanks for being here and for our listeners. Barry is one of my personal heroes, and I'm just ecstatic, Um that we're able to get you to enlighten us about arson evidence. Now, you worked to get Cameron Todd Willingham's

case overturned after he was executed. And this might seem like somewhat of a pointless fight to some people since Mr Willingham was already put to death in two thousand four. But you are fighting for Mr Willingham's final wish for his name to cleared and him to be declared an innocent man by a court. I think that it's um well accepted that he's an innocent man at this point, But you're also fighting so that the kind of evidence that was used against Mr Willingham doesn't get used to

convict another innocent person. And so to start off, Barry, Um, if some of the clues used an arson investigation or indeed junk science, how did Cameron Todd Willingham get convicted in the first place? What the fire scientists, the arson investigators in Willingham, But they did in that case. They would go to the scene of a fire and they would look at all these visual cues and if they saw what was called alligatoring, which was you know, like

the scales of an alligator on wood. If they saw what was known as craze glass that's like a spider type cracking of the glass. If they saw spawling of concrete that's like little chips coming off the concrete at the scene of the fire. If they saw scouring on the floor, poor patterns, they immediately assumed that all of these visual cues meant that somebody had spread accelerant around the house and lit it and that was the cause

of the fire. And they literally said to the jury, we look at the fire, the fire talks to us. The fire doesn't lie. That's very powerful to a jury. So what happened, Josh, is that when we at the Innocence Projects saw what happened in the willing Ham case, we had just been involved in setting up what's known as the Texas Forensic Science Commission. They reviewed all the crime scene evidence in the willing Ham case and they said what was clear, uh, and that is this is

junk science. This had been discredited by No Fire Protection one ten years ago. The science was completely flawed, unreliable, ridiculous. So even after all of that, the state of Texas still refused to free Cameron Todd Willingham. And to show just how flawed this evidence was, there was a man name Ernest Willis who was convicted of a similar crime with similar evidence than was used in the Willingham case.

But while Cameron Todd Willingham was put to death in two thousand four, Willis was declared innocent that very same year. So how is that possible, very that one man Willingham is executed based on this junk science, while another man, Willis, whose case was very similar, it gets to go free. Ernest Willis went to trial, he had a completely incompetent lawyer who was disbarred for all kinds of reasons. Willis was so upset by the fire that you know, killed

family members that he was literally on psychotropic medication. Uh in the witness chair, right. He was lucky because his lawyer was so incompetent, and on his death penalty appeal he got a patent lawyer from Lath of Ben Watkins in New York who dove into the case and was able to get the federal courts to vacate that conviction.

And when the conviction was remanded on exactly the same evidence, just like the Willingham case, Willis was not only exonerated, there was a prosecutor in Pacos County, Texas, took one look at this and said, oh my god, this was an accidental fire. This was not an arson murder. Uh, And he not only dismissed the case against Ernest Willis, Ernest Willis was compensated as actually innocent by the state of Texas, while within the same time period, Cameron Todd

Willingham was executed. It's just really hard to hear this stuff right because right away this indicates some sort of double standard, or at least some confusion within the justice system about what arson evidence really means and how much

it can be trusted. And to be clear, by two thousand four, there shouldn't have been any confusion about this type of evidence, because in the early nineties there were two incidents that I'm going to ask you about that really proved that the kind of arson evidence used in the Cameron Todd Willingham case was bogus. The first was the Lime Street case, in which was the case of

Gerald Wayne Lewis. Mr. Lewis was accused of killing his pregnant wife, his sister, and his sister's four children by arson now, Gerald always maintained his innocence, but it was actually a prosecution expert named John Lentini who was the moving force improving Gerald's innocence. John Lentini was an arson investigator, and he went along with a colleague of his UH, John de Haand to investigate an allegation of arson at

a home on Lime Street in Jacksonville, Florida. UH. And they examined the crime scene and they were already by their own admission, to make a recommendation that it was an intentional arson. But they realized that right next to the house that burned down was another house that was abandoned, but it was the same construction. So they rebuilt the house right next door to be identical to the Lime Street house that burned down, and then they basically put

a cigarette on a couch. They began the fire UH in a way that would be completely accidental. The whole place burned down, and they saw all the clues, all the visual clues from the craze glass alligator burning under furniture, completely compartmentalized fire. They saw all these cues and they knew that it was an accidental fire, not a deliberate one,

and so that began to change everything. So again, this is very ironic and rare because Lentini's a fire investigator that's working for the prosecution, and he's actually trying to prove that this Lime Street case was in fact arson and that Gerald Wayne Lewis had actually done it. But he realizes that there were some serious issues with his assumptions because this accidental fire actually resembled an arson, and

it resembled it in very critical ways. And what was most shocking to me about this was that Lentini saw puddle stains and trail marks that looked identical to what he had been taught and so many other investigators had been taught it, or the telltale signs of someone dripping gasoline or another accelerant throughout a house. But that definitely

was not the case here. And they knew that because they set the fire themselves with a cigarette exactly, and they'd say, well, that really can happen unless it's an intentionally set fire. But it turns out with this phenomenon of flash over, which is you get this hot combustible object in a small space ordinarily a room, right, and then it begins to cause this huge burst of heat and fire in that room, and the whole place becomes engulfed.

So that's what creates uh, the intense heat that arson investigators had hypothesized must come from the deliberate use of accelerance. It turns out that it could all happen in a completely accidental fire. So Lentini the investigator realizes that accidental fighters can look just like arson, and he does something that is actually quite remarkable. But it shouldn't be, because whether you're working for the prosecution or the defense, when the science tells you something, you should not have a

bias in its application. Right. He doesn't say, Oh, this is just some weird coincidence. I'm gonna keep working for prosecutors to convict people in arson cases based on this evidence that I now know is clearly faulty. It's wrong. Instead, he's pretty shocked, um appalled by what he sees, and

he feels like he's been misled by this evidence for years. Right, And he gets an opportunity to examine um a bunch more more accidental fighters and make sure that his findings in the Limestreet case were consistent with other accidental fires. I don't know if people remember, but these homes on the in the hills in Oakland, California, began to burn down, uh you know, in what was plainly a series of

accidental fires. And after all these homes were burned down, the fire scientists went at and examined each and every one of them and they realized, once again, here were plainly accidental fires. But all these visual cues that arson experts had been relying on demonstrated that it was an accident. It was not an intentionally set fire. So take just the craze glass. That's a simple thing to understand. Uh

you know, you look at the glass. It's sort of spider glass, and that supposedly an indication of suddenly intense heat that comes from uh you know, an accelerant induced fire. In fact, you and craze glass all over in Oakland in the Lime Street fire. Because craze glass happens when people come to put out the fire and they put cold water on it and the glass cracks. That's how you get craze glass. So these arson investigators have been testifying for years and years that the reason you see

craze glass, and it's no pun intended. It's actually a crazy notion that they're testifying to one thing and it turns out to be the exact opposite. Alright, so craze glass was caused by the cooling of the glass when they're putting the fire out. What were some other things they were wrong about? They would say, oh, we're looking at mattress springs, uh in a bed or something and they're melted. That can only happen that it's an intentionally

set fire. But when they went to the hills of Oakland and looked at these homes, they saw the same thing, and the same thing at the Lime Street fire. I mean, you would think that would be the end of people trying to use this kind of junk science, this kind of false evidence, but that isn't the case. What is really upsetting is that you see over the next few decades, nonetheless, lots of people who are convicted because they never did

uh scientific validation in the first place. You actually have to conduct experiments, you have to have hypotheses, and you have to prove that they're true, instead of just having you know, uh really you know, sort of law enforcement people in lab coats, so to speak, or people that have expertise by way of quote unquote experience going to crime scenes and looking at fire scenes and and really coming up with their own hypotheses that were never demonstrated

to be true by science. That's what's so shocking about this whole area. In other words, if you believe all of these different visual cues demonstrate that an accelerant has been used, you should do experiments to prove the point. Now, Barry, this isn't the case where these investigators were out harm people.

This is just how they were trained. I have some sympathy for a whole group of people who had, many of them just high school graduates who were trained in arson investigation to believe all these different visual cues were assigned of the use of an accelerant and intentionally set fire that was never empirically demonstrated, and yet they were doing it. Uh. And that's how they made a living,

that's true, and they thought that they had expertise. It's it's imagine how horrendous it is to believe, as a prosecutor were as a so called arson investigator, that you were wrong and you destroyed people's lives. People don't get up in the morning and say let's do that, right. Uh. But it happens, and it's very hard to admit to it, all right, So why do you think it is that? You know, generations of experts have all been proven to be wrong. The assumptions they rely on turn out to

be incorrect, but there's this unwillingness to change. Once you have invested yourself in this belief and all these very weighty consequences follow, it's very hard to admit that you were wrong, even when there's scientific proof that you're wrong. John Lentini and John Dohan and all these various experts, you know, they started off as regular arts and investigators, um that we're taught to believe these things, but engaging in real science and doing these experiments, they realized it

was all wrong. And they had an enormous amount of trouble persuading the forensic science community to stop, and they're still fighting about it even to this day. I mean, I think that the Willingham case and all these other exonerations have exposed the community to it, and you literally can see fewer Arson convictions since that happened. But Josh, you're you're you're absolutely right. It's it's mystifying, it's so upsetting that it is taking so long to change it.

And meanwhile, these convictions based on this false arson science or this there's fire evidence, Um, just keep on coming. Han Tock Lee, whose daughter, who suffered from mental illness, was found uh literally burnt to death, incinerated, you know, in a small community in Pennsylvania, he gets convicted of killing his daughter intentionally in a fire which did not happen. Right. The case of Han Tock Lee is just, um, it's

really really troubling. I mean, here's a guy that's been fifteen years in prison for a murder he did not commit. And there's a quote that always stuck with me from an opinion written by a judge during Han Tok Lee's appeal, and it was this quote, much of what was presented to Lee's jury as science is now conceded to be little more than superstition end quote. I mean, that's so remarkable, isn't it. And you know, again, the fact that this is still used in the face of quotes like that,

it's just it's hard to understand. You know. He was granted a new trial and finally exonerated, thankfully, in two thousand and fifteen. Another was a Sonja Casey, who was convicted of burning down a house and killing I guess that it was her uncle, Bill richards And and it, of course it turned out that Bill Richardson was actually a heavy smoker and had probably fallen asleep with a burning cigarette. But plainly she did not start this fire. All the same kind of junk science was used in

that case. And that's the great tragedy. When you look at the arson cases, so many people like Ernest Willis or Cameron Todd Willingham, Rahn Tock League, you know, they're all convicted of killing with intentionally set fires their loved ones. That to me is, you know, the horrible, horrible irony of these junk science cases. Now, for our listeners, I know Barry, you know twenty years um, and I've seen you get emotional before and passionate about a lot of cases.

But I want to go back to the Cameron Todd Willingham case for a moment because it seems to me that this is one that really stuck with you, um. And it seems to me like one of the two or three cases that has really haunted you in all your innocence work. How can it not haunt you? It should haunt everyone in this country. I mean, this is a case that ought to change the way the people

look at capital punishment and forensic science. I think, look, we've made a lot of progress, but we still haven't corrected the biggest injustice of all, and that is uh the wrongful execution of Cameron Todd Willingham. Do you see the suffering up to the very very end and the execution of an innocent man? How could it not haunt you? There's so much importance attached with the state finally admitting that it was wrong and that an innocent person is executed,

and that will happen in Texas. It will. Something we keep returning back to in this podcast is the two thousand nine National Academy of Science AS Report, which is a report published by rigorous scientists that is very critical of forensic sciences like Arson investigation. In fact, the only one that it's not really critical of his DNA. And you've done a lot to try to push um the lessons of this report to overturn convictions based on junk science.

Truth is the two thousand nine UH and National Academy of Science Report recommended that there be an independent entity in the federal government Uh, that would be dedicated to providing a scientific basis and oversight to all these forensic science disciplines, and independent entity, the National Commission on Forensic Science was put into place, which had independent experts from lots of different scientific communities. When Trump was elected, uh,

he abolished the National Commission on Forensic Science. Look, it's really inspiring to see that, despite all that's gone wrong and all that hasn't worked, that you're still hopeful. Because something else that's so shocking is that this issue about what kind of evidence should be considered, you know, scientific fact, something that can literally determine whether or not so much live or die based on a crime they may not have committed. It's all still being treated like a political issue,

and you have personal experience with these political barriers. Yet you're still hopeful despite all of the harm that's been done and continues to be done, um by political officials, by presidents, by judges who, unlike Lentini, refused to see the light so to speak. You know, it becomes this

big echo chamber. Junk science is admitted by one court, right, and all the experts can then testify again and again and again, even though it was never properly validated in the first place, and we've had a lot of that, and judges really have to be rigorous on dealing with it. And the problem with judges is that we all went to law school and not medical school. The judges really do have to be better in terms of getting into the nuts and bolts of the science. It's intimidating to them,

just as it's intimidating to a lot of lawyers. You might be listening to this wondering what you can do to help. I want every listener to consider that even those who are wrong convicted and are lucky enough to be released from prison, their lives are just never the same. Let's take the example of Sonya Casey. She's the woman Barry Check mentioned who was accused of murdering her uncle

by arson. We know that miss Casey was innocent because, amongst other evidence, it was later found during the autopsy of her uncle that he most likely died from a heart attack. There was no suit in his lungs, which would have been there if he had in fact died in the fire. Instead, there was fluidness lungs, so the evidence supported the conclusion that he was dead before the fire. Had even spread. Nevertheless, Casey was sentenced to nine nine

years in prison. Sonya Casey was eventually exonerated, but the stain of her wrongful conviction meant that on every job application or when she would try to rent an apartment, she would either have to check a box saying that she had been convicted of a crime, or it would be revealed on a background check. That made it nearly

impossible for her to find work or a place to live. So, if you own a business, or you're a landlord, or you're just in a position to either approve or reject someone for work or a place to live, and someone checks the box that they had previously been convicted of a crime, please talk to them, learn about the circumstances of their arrest, the accusations against them, who they are now as a human being. Perhaps you'll find that they were the victim, yes, the victim of a wrongful conviction.

Or maybe it's just that they've done something in their past and are no longer that person. The great civil rights attorney Bryan Stevenson said it best. Each one of us is more than the worst thing we've ever done. The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.

I think we can all learn something from that. Okay, next week will analyze hair microscopy, the profoundly flawed junk science that attempts to use human hair to accuse and convict people of crimes they did not commit. Wrongful Conviction Junk Science is a production of Lava for Good Podcasts in association with Signal Company Number One. Thanks to our executive producer Jason Flom and the team, it's Signal Company number One executive producer Kevin Wardis and senior producers Kara

corn Heber and Brit Spangler. Our music was composed by j Ralph. You can follow me on Instagram at dubin dot. Josh followed the Wrongful Conviction podcast on Facebook and on Instagram at Wrongful Conviction and on Twitter at wrong Conviction foll