Up in Smoke
JIMMY HEBSHIE, 65, grew up in Brockton, the City of Champions, where he was a close friend of Peter Marciano, brother of boxing legend Rocky Marciano. Hebshie never boxed himself, but looks like he could have. He is heavyset and solid-looking, with a pug nose and a receding white hairline. After a car accident in high school that broke 33 bones, however, his health has never been the same. When he pulls up the sleeve of his black cotton jacket, you can see the wrinkled groove from when doctors removed a muscle in his lower arm. Over the years, he’s had degenerative arthritis in his back, a triple heart bypass, and a complete left hip replacement. In prison he developed cellulitis, a painful infection of the skin tissue that caused his legs to swell and prevented him from walking. “I’d be in so much pain sometimes I couldn’t even get out of bed,” he says.
Hebshie may have been convicted at trial, but his family never lost faith in his innocence. “Between my husband and sisters, we tried to figure out what direction to go in now,” his sister Judy Foley recalls of the time after the conviction. “What do we do to right this wrong?” Hebshie’s lawyers, the father-son team of John T. Spinale and John S. Spinale, withdrew from the case shortly after the trial. With the clock ticking on the time allowed for appeal, a fellow inmate gave Hebshie the name of appellate lawyer Jeanne Kempthorne, who agreed to take the case.
Kempthorne met with Foley in the parking lot of a fruit stand on Route 2 and left with boxes of legal papers and an awkward foam-core model of the store. As the lawyer started reading the trial transcript, she grew troubled, especially by the fact that Hebshie’s lawyers hadn’t challenged the obviously questionable value of the testimony from the K-9 officer, who’d said he knew the “personality” of Billy the accelerant-sniffing dog, and could “read her face” and “the way her eyes shifted.” The failure to challenge that evidence was especially troubling because Judge Gertner had three times asked Hebshie’s lawyers whether they planned to.
Kempthorne wasn’t able to bring up those issues in her appeals request, however, because at that point, the main question is whether the law was properly applied. The court ultimately found that though mistakes had been made in the original trial — including some by the judge — they weren’t enough to overturn the case. After a process that dragged on for a year and a half, the appeal was denied.
Kempthorne next brought a federal habeas corpus petition to request a new trial. Searching the Web for an arson expert, she came upon the work John Lentini was doing to reform the way fires are investigated. She’d hoped Lentini could simply corroborate her feelings about the dog evidence, but that was the least of the problems with the government’s story, he told her.