August 17, 2020 • 36 mins
Josh Dubin sits down with Barry Scheck, Co-Founder of the Innocence Project to discuss Arson Evidence.
Built on a foundation of conjecture and best guesses that were never adequately tested and confirmed according to any valid scientific principles, what Arson Evidence experts and prosecutors have been telling juries for decades, that one can definitively determine that a fire was intentionally set, is completely wrong.
But why, after generations of experts have all been proven wrong, is there still an unwillingness to change?
Learn more and get involved.
2009 Article in The New Yorker by David Grann
https://www.newyorker.com/magazine/2009/09/07/trial-by-fire
https://www.wrongfulconvictionpodcast.com/junk-science
Wrongful Conviction: Junk Science is a production of Lava for Good™ Podcasts in association with Signal Co No1.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
It's December. Last night you decorated a Christmas tree with
your family. You put your two year old on your
shoulders so she could hang her favorite ornament way up
high on the tree. Your twin babies gazed up at
you from the living room floor, taking the scene in
with giggles and excited kicks of their little legs. Later on,
(00:22):
your wife put the kids to bed, and then you
both stayed up late, finishing the tree and cleaning up.
In the morning, your wife leaves the house early for
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
(00:43):
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
(01:06):
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.
(01:28):
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.
(01:53):
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
(02:16):
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
(02:38):
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
(02:58):
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
(03:22):
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
(03:42):
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
(04:06):
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
(04:28):
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
(04:49):
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
(05:12):
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
(05:37):
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
(06:00):
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
(06:25):
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
(06:48):
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
(07:12):
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
(07:45):
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
(08:08):
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,
(08:33):
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
(08:57):
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
(09:20):
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
(09:41):
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
(10:02):
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
(10:26):
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
(10:49):
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
(11:14):
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
(11:36):
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
(11:59):
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,
(12:21):
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
(12:43):
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
(13:03):
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,
(13:26):
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
(13:49):
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
(14:11):
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
(14:31):
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
(14:52):
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
(15:14):
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,
(15:36):
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
(15:58):
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
(16:20):
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
(16:41):
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,
(17:04):
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
(17:26):
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
(17:49):
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,
(18:12):
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
(18:33):
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
(18:56):
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
(19:17):
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.
(19:39):
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
(20:14):
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
(20:37):
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
(20:59):
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,
(21:21):
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
(21:44):
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
(22:08):
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
(22:30):
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
(22:52):
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,
(23:16):
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
(23:37):
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
(23:59):
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
(24:23):
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
(24:45):
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
(25:07):
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
(25:30):
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,
(25:51):
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
(26:12):
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
(26:35):
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,
(26:56):
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
(27:20):
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,
(27:42):
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
(28:03):
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
(28:26):
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
(28:48):
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
(29:11):
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
(29:32):
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,
(29:55):
and that will happen in Texas. It will. Something we
keep returning back to in this podcast is the two
(30:17):
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
(30:38):
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
(31:00):
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,
(31:21):
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
(31:43):
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
(32:08):
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.
(32:29):
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
(32:52):
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
(33:13):
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
(33:34):
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,
(33:55):
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
(34:15):
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.
(34:37):
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.
(35:01):
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
(35:26):
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.
(35:48):
Josh followed the Wrongful Conviction podcast on Facebook and on
Instagram at Wrongful Conviction and on Twitter at wrong Conviction
foll
It's December. Last night you decorated a Christmas tree with
your family. You put your two year old on your
shoulders so she could hang her favorite ornament way up
high on the tree. Your twin babies gazed up at
you from the living room floor, taking the scene in
with giggles and excited kicks of their little legs. Later on,
(00:22):
your wife put the kids to bed, and then you
both stayed up late, finishing the tree and cleaning up.
In the morning, your wife leaves the house early for
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
(00:43):
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
(01:06):
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.
(01:28):
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.
(01:53):
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
(02:16):
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
(02:38):
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
(02:58):
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
(03:22):
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
(03:42):
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
(04:06):
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
(04:28):
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
(04:49):
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
(05:12):
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
(05:37):
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
(06:00):
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
(06:25):
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
(06:48):
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
(07:12):
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
(07:45):
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
(08:08):
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,
(08:33):
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
(08:57):
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
(09:20):
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
(09:41):
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
(10:02):
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
(10:26):
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
(10:49):
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
(11:14):
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
(11:36):
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
(11:59):
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,
(12:21):
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
(12:43):
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
(13:03):
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,
(13:26):
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
(13:49):
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
(14:11):
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
(14:31):
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
(14:52):
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
(15:14):
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,
(15:36):
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
(15:58):
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
(16:20):
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
(16:41):
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,
(17:04):
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
(17:26):
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
(17:49):
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,
(18:12):
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
(18:33):
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
(18:56):
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
(19:17):
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.
(19:39):
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
(20:14):
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
(20:37):
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
(20:59):
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,
(21:21):
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
(21:44):
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
(22:08):
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
(22:30):
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
(22:52):
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,
(23:16):
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
(23:37):
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
(23:59):
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
(24:23):
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
(24:45):
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
(25:07):
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
(25:30):
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,
(25:51):
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
(26:12):
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
(26:35):
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,
(26:56):
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
(27:20):
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,
(27:42):
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
(28:03):
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
(28:26):
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
(28:48):
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
(29:11):
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
(29:32):
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,
(29:55):
and that will happen in Texas. It will. Something we
keep returning back to in this podcast is the two
(30:17):
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
(30:38):
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
(31:00):
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,
(31:21):
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
(31:43):
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
(32:08):
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.
(32:29):
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
(32:52):
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
(33:13):
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
(33:34):
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,
(33:55):
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
(34:15):
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.
(34:37):
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.
(35:01):
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
(35:26):
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.
(35:48):
Josh followed the Wrongful Conviction podcast on Facebook and on
Instagram at Wrongful Conviction and on Twitter at wrong Conviction
foll
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
Popular Podcasts
40s and Free Agents: NFL Draft Season
Daniel Jeremiah of Move the Sticks and Gregg Rosenthal of NFL Daily join forces to break down every team's needs this offseason.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
The Bobby Bones Show
Listen to 'The Bobby Bones Show' by downloading the daily full replay.