James Hebshie's Conviction Vacated

On November 15th, Judge Nancy Gertner issued a 69-page ruling granting James Hebshie's habeas petition. Mr. Hebshie was convicted of starting a fire that destroyed an office building in Taunton, MA. The fire occurred in 2001, Mr. Hebshie was convicted in 2006. Mr. Hebshie ran a convenience store within the office building. The government's theory was that Hebshie burned his store to get $5,000 worth of insurance money. The government put on the following witnesses to tell their story:

1. David Domingos: (Cause-and-Origin Investigator) Domingos testified that the left-side wall in Hebshie's store was the most damaged (even though other parts of the store had collapsed). Domingos centered in on the store very early on in the investigation. Judge Gertner points out, "Domingos discounted the theory that the fire was an electrical fire starting in the basement, even though, as noted, his written report did not mention the basement at all."

2. Sergeant Lynch: (Canine Handler) Lynch testified at length about the "accelerant-detection" dog, Billy. Lynch discusses Billy's personality, his emotional attachment to the dog, and "the way her eyes shifted," "the way her ears shifted when she located stuff." Lynch vouched for the dog as 97% accurate, an assertion that was not corroborated by any evidence. Lynch only brought Billy into Hebshie's store, where she alerted the presence of a substance later classified as light petroleum distillate (LPD). When Billy alerted, Lynch took only one carpet sample; no control samples were taken. LPD is a substance that could have come from any number of sources, including the chemical makeup of the carpet itself. When asked why no control samples were taken, Lynch and Domingos both pointed the finger at each other.

3. Lieutenant Myers: Myers was the first firefighter on the scene. He testified to the thermal imaging. After the initial fire had been extinguished, the imaging camera showed "hot spots" along all four walls. Myers believed that this merely meant that the walls were hot from the fire that had been extinguished. In fact, the fire was inside the walls and continuing to spread.

Hebshie's counsel, John and Jay Spinale, did not challenge any of the aforementioned "scientific" evidence, despite the Court repeatedly asking them if they'd like to have a Daubert hearing. The Spinales also failed to object to the lengthy, and as Gertner puts it "mystical account," of the dog-sniff evidence.

These, coupled with numerous other deficiencies, caused Judge Gertner to order a new trial for James Hebshie. The conclusion of her opinion sums it up best:

As Larry A. Hammond, past president of the American Judicature Society, noted: "By routinely allowing into evidence expert testimony that we know should have been excluded, and by closing courthouse doors to claims for redress after conviction, the courts have contributed to the problems we face today." Larry A. Hammond, The Failure of Forensic Science Reform in Arizona, 93 Judicature 227, 2 (2010).

In fact, he suggested, one thing that each of the cases in which there have been wrongful convictions necessarily have in common is that each were presided over by a judge, an appellate court, and typically had post conviction habeas review. And then he concluded:

"One would hope that with the announcement of every exoneration, the judges across whose desks these cases passed would pause to ask, ‘what can we do to make sure that this doesn’t happen again?"

This Court recognizes the importance of finality in criminal cases, particularly after time and resources have gone into the trial, and after a jury has pronounced guilt. But finality cannot trump fairness or justice. If Hebshie’s defense of serious charges was fatally undermined by ineffective counsel, I am duty bound to say so. Therefore, Hebshie’s habeas petition is GRANTED.

For the first news article breaking the story, click here.
See below for Judge Gertner's full order.



US v. Hebshie

Texas Forensic Science Commission Discusses Willingham Case

After nearly two years, the Texas Forensic Science Commission (TFSC) has still yet to reach a decision about the Cameron Todd Willingham case, which has been pending since 2008. In 1992, Willingham was convicted of setting a fire in his home that caused the death of his two daughters. Willingham never stopped proclaiming his innocence. He was executed in 2004.

Members of the commission were reluctant to adopt the findings of the draft report, which states that the fire investigators were not negligent because they used fire investigation standards that existed at the time. One member, Sarah Kerrigan, thinks there is a disconnect between the standards used in the investigation and the ones widely accepted now. Another member, Garry Adams, said he was “not completely convinced that the science wasn’t available to the analysts” at the time of the Willingham investigation.

The commission will meet again on November 19th to hear expert testimony about the investigation standards then and now.

Click here to see video of Barry Scheck speaking in front of the TFSC last week.

Smith, Morgan. Forensic Science Commission Takes up Willingham. http://www.texastribune.org/texas-dept-criminal-justice/death-penalty/forensic-science-commission-takes-up-willingham/

Arson Convictions in Massachusetts Coming Under Fire

In the past few months, three different arson convictions in Massachusetts have been challenged by nationally recognized fire scientists. These scientists point out that certain patterns thought to be present only in intentionally set fires are now known to occur in accidental fires as well.

In 1991, a scientific manual was published that pointed out these misconceptions. Ever since, the number of fires determined to be arson steadily declined in Massachusetts. Between 1984 and 2001, the number of fires ruled arson declined by 70%,while the total number of fires stayed relatively the same.

State Fire Marshall Stephen D. Coan credits this noticeable decrease to better fire science education and increased visibility of law enforcement.

John Lentini, one of the nation's most prominent fire scientists, says "there were a lot of accidental fires determined to be arson that weren't. I don't know any other way to interpret this dramatic decline."

Barry Scheck, co-founder of the Innocence Project, has urged prosecutors to go back and examine their old arson cases. Sheck believes that this obligation arises from knowing about the unreliabitliy of arson science. However, Coan says such reviews would be unnecessary.

One of the cases currently being questioned is the Lowell fire of 1982, for which Victor Rosario is serving a life sentence. NEIP has previously posted a blog detailing the problems with Rosario's conviction.

Another case is the conviction of James Hebshie in 2001. Hebshie ran a convenience store within an office building in Taunton, Massachusetts. After a fire consumed the whole building, Hebshie was convicted of the crime. Lentini has reviewed Hebshie's case and believes that the fire investigator got it wrong. He points out that Trooper David Domingos's determination that the fire started in Hebshie's store is inconsistent with the fact that the fire was blazing behind the walls on the opposite side of where the fire allegedly started. Lentini states, “The methodology used to determine the [fire’s] origin was outdated.’’

NEIP attorneys worked in conjunction with Hebshie's private counsel on his motion for a new trial, which is currently awaiting a decision in US District Court.



Nicas, Jack. "Scientists challenge Massachusetts arson convictions." September 8, 2010. http://www.boston.com/news/local/massachusetts/articles/2010/09/08/scientists_challenge_massachusetts_arson_convictions/

Incarcerated but Free

Last Friday, Victor Rosario became one of the first Massachusetts inmates to be ordained as a minister while incarcerated.

Rosario is serving a life sentence for arson in connection to a 1982 Lowell fire that killed 8 people. Rosario was present at the scene of the fire and heard cries for help coming from the burning building. He was 24 years old at the time and had abused alcohol for most of his life. Just hours after the horrible fire, Rosario sought the help of a local minister. “When he was praying for me, I went down to the ground, and I felt this kind of peace in myself,’’ Rosario said in an April prison interview. “Like a Christian person, … you’re reborn, I felt that peace in me and I went back with the Bible thinking Sunday I would be in church.’’

Rosario, however, was in jail by Sunday and has remained behind bars ever since. During his incarceration, Rosario has run marathons, mentored fellow prisoners, and married. While still physically incarcerated, Rosario says he is mentally free from drugs and alcohol. Rosario writes, “I believe that God has called me to prison ministry. I also believe that one day I will be a free man and able to minister both inside and outside these walls that currently confine me.’’

Two weeks ago, a Boston Globe article highlighted numerous shortcomings in the investigation that raise serious questions about the validity of Rosario's conviction. Rosario's legal team is expected to file a motion for a new trial later this summer.

Nicas, Jack. "Behind bars, convict's spirit is free." http://www.boston.com/news/local/massachusetts/articles/2010/07/11/behind_bars_convicts_spirit_is_free/

Questioning the Validity of Arson Science

The well accepted fire science that convicted George Souliotes in 1997 is now coming under question. Souliotes, a Greek immigrant, was convicted of arson that killed three people including two children in Modesto, CA. He was the landlord of the building.

Arson investigations have recently come to the forefront after the execution of Todd Willingham in Texas in 2004. The fire deemed arson in Willingham's case seems now to be probably accidental. Because of this, many fire scientists have begun to review old cases to see if questionable science is convicting innocent people.

The science started to unravel because of the1992 groundbreaking guide by the National Fire Protection Association. The report is now widely embraced, but some experts still retain their old beliefs. The report shows that some assumptions about arson science are now known to be false. For example, conditions thought only to be present in arson cases have now been confirmed as typical in accidental cases, too: including melted steel and glass etched tiny cracks.

John Lentini, a prominent fire scientist who testified for Souliotes', says that a sizable number of experts still "don't want to admit they were doing it wrong."

Souliotes' fate rests on the forthcoming decision of the 9th Circuit Court of Appeals, which will soon decide whether to reexamine the case. The Northern California Innocence Project has taken on Souliotes' case. Souliotes' sister, Aleka Pantazis, 63 has also helped to bring attention to his case. Souliotes' lawyers argue that arson investigators misinterpreted the evidence at the scene.

The prosecution claimed that substance on Souliotes' shoes matched the compound that started the fire. But, Lentini says they do not have a common origin, and now the prosecutors are not disputing this.

In the meantime, all Soulites and his sister can do is wait for the decision to be handed down. Pantazis says, "what I live for is to see the day my brother will walk out. Whatever years he has left, at least he will be free."


Dolan, Maura. "13 Years Later, an Arson Case Begins to Unravel" Los Angeles Times. May, 31 2010. http://www.latimes.com/news/local/crime/la-me-arson-20100531,0,2851484,full.story