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.

  • Ken

    My name is Ken Davis and I lived thru this horrible situation..A few important facts that were missed is that the disiltate found at the scene can be found in countless household items and was collected in a handful of dirt..and the dog asigned to investigate found nothing on any of my clothes or in my home or in my vehicle…lastly, I was already in custody before their investigation as to the cause to the fire was determined

  • Ken Sr.

    God bless you Jimmy Hebshie! You are deserving of your innocence and much more!

  • Ken Sr.

    Perhaps some day my son will also be exonerated and have have his name cleared as well.
    Thank you Michael for a great article and bringing to light the poor (at best) fire investigation by the states fire marshalls office.

  • Ken Sr.

    David Domingos refused to allow our investigator Mike Higgins to “TAKE and TEST” any samples from this scene. It was certainly within the rights of Mike Higgins to do so. Why would Domingos do that? A cover up so no one could dispute his report? Which by the way was the only written document submitted. No notes ever taken, only memory. And in that report Domingos states that the electrical was up to code and no evidence of beading wires however, during the trial pictures were shown him taken by our investigator and he identifies beading wires which IS an indicator of an electrical cause…CLEARLY!! Even an amature investigative student knows that!

  • Ken Sr.

    David Domingos contaminated, compromised and destroyed the scene of the Davis case before our investigator, Mike Higgins could make a professional and logical determination of the cause of this fire. Clearly Domingos had a predetermination in this case. He can’t even follow basic investigation procedures. The states fire marshalls office did a poor job in the Hebshie case as they did in the Davis case. Ever hear of “Kirk’s Fire Investigation Manual?” We have and read it cover to cover. Basic Fire Investigation 101 eludes David Domingos.

  • Ken Sr.

    The State Fire Marshals office headed by David Domingos and the Prosecutor defied and ignored a court order to preserve the scene and all evidence in the Davis case.