Judge Nancy Gertner's Call to Action for Criminal Defense Attorneys

In a UCLA Law Review article titled "Commentary on the Need for a Research Culture in the Forensic Sciences " (58 UCLA L. Rev. 789 (2011)), Judge Nancy Gertner discusses the need for attorneys to familiarize themselves with the forensic sciences. In the wake of the National Academy of Sciences Report, which calls for drastic changes in the scientific community regarding forensic science standards, Judge Gertner advocates for change within the legal community as well. She believes that defense counsel's lack of forensic knowledge could be grounds for a successful ineffective assistance of counsel claim. Judge Gertner cites US v. Pena (586 F.3d 105 (2008)) to illustrate a defense attorney's failure to follow through with a Daubert hearing after it had been granted by the court. Defense counsel should know how the science works so they can actively challenge it at trial.

She writes, "Counsel have to learn that advocacy in cases involving forensic evidence requires familiarity with the kind of issues the NAS Report raised. And further, courts need to make it clear that such familiarity may be one of the benchmarks in evaluating when assistance of counsel is constitutionally ineffective."

Although not mentioned in the article, this issue arose last year in Judge Gertner's own courtroom in the case of James Hebshie. Hebshie was convicted of arson based largely on unvalidated forensic science. His attorneys failed to request a Daubert hearing regarding any of the arson testimony, despite the fact that Judge Gertner repeatedly asked them if they would like to do so. Judge Gertner granted Hebshie a new trial, citing his counsel as being constitutionally deficient for failing to challenge the arson science.

James Hebshie Released on Bail in Time for Thanksgiving

After spending more than four years in prison, James Hebshie left the federal courthouse with his family today after US District Court Judge Nancy Gertner granted his Emergency Motion for Bail and released him on personal recognizance. After a 5 day hearing last July, Mr. Hebshie's conviction was vacated by Judge Gertner last week. Gertner wrote, "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."

The government did not oppose Hebshie's motion. Mr. Hebshie, in a brief but moving speech, thanked the Court and those who worked to help him gain his freedom. "I never thought I'd live to see this day," Mr. Hebshie said.

NEIP Thanks Jeanne Kempthorne & John Lentini

James Hebshie's case would most likely have been another wrongful conviction that never came to light without the help of Jeanne Kempthorne and John Lentini. Ms. Kempthorne took on Mr. Hebshie's case for appeal and, believing in his innocence, refused to give up after losing in the first circuit. She enlisted the help of NEIP for the habeas petition. Kempthorne was a U.S. attorney for ten years before opening her own firm. She focuses on appellate and post-conviction practice in state and federal court.

John Lentini, one of the nation's most prominent fire scientists, testified on Hebshie's behalf at the evidentiary hearing granted by Judge Gertner in this case. Lentini has testified in over 200 cases (both civil and criminal) and has conducted over 2,000 fire scene investigations. Lentini pointed out the shortcomings in the government's case, including the "scientific" testimony relating to the fire. Judge Gertner relied heavily on Lentini's testimony when issuing her order earlier this week.

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

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/