Up in Smoke

In Massachusetts, there has been a dramatic drop in the percentage of structure fires determined to be arson. It was 15 to 20 percent until questions first started being raised in the early 1990s. After that, it fell steadily, bottoming out at 1.6 percent in 2009. A spokesperson for the state fire marshal says some of the decline is related to changes in how fires are categorized. After 2001, “suspicious” fires were no longer lumped in with arson. But that hardly explains all of the decline. State Fire Marshal Stephen Coan has previously credited successful prosecutions with deterring would-be firebugs. (Coan’s schedule did not allow for him to be interviewed in time for this story. He declined offers of a phone interview.) But Lentini sees the plunge in arsons as a sign of something else: better investigations that rule out arson in the vast majority of fires. “You don’t get a drop like that without the fire-investigation profession as a whole deciding they were going to be more cautious,” he says.

While that’s good news, it does raise the question of what happened to all those people who were previously convicted of arson. Consider the case of Victor Rosario, who is currently serving a life sentence for a 1982 fire in Lowell that killed eight people. An analysis last year by the New England Center for Investigative Reporting showed that much of the evidence against Rosario involves the kind of burn-pattern analysis that has since been discredited. Rosario’s lawyer expects to introduce a motion for a new trial in early summer. Bennett, meanwhile, says there’s really no way to know how many people are currently sitting in jail for fires they didn’t start.

BASED ON THE EVIDENCE provided by Lentini, Jeanne Kempthorne submitted a motion for a new trial for Hebshie in June 2009. It took nearly a year to schedule a hearing, which finally took place last July. Trooper Domingos, now retired, reiterated that he had investigated the basement of Hebshie’s store before concluding the fire was set on the first floor. On cross-examination at the hearing, however, he admitted he didn’t have a specific recollection of when he went downstairs, and he placed the staircase in the wrong place in the diagram that he made of the shop soon after the investigation. Domingos declined to be interviewed.

Lentini, too, testified at the hearing, detailing his analysis of problems with the case — including the failure to consider the basement and the lack of other samples to prove that an accelerant was used. Despite appeals from Kempthorne to release her client immediately, Hebshie sat in jail for another four months, waiting for Gertner to issue a ruling. When she did, it was a scathing indictment of the investigators, the prosecutors, and Hebshie’s original lawyers. She reserved her harshest words for the dog testimony: “Lynch, the dog handler, was permitted to testify to an almost mystical account of Billy’s powers and her unique olfactory capabilities….” she found. “Billy, like the traditional Ouija board, was simply allowed to point to Hebshie as an arsonist.” She also knocked Domingos for, among other things, his failure “to take photographs of the basement or even mention that he had been there in his investigation reports.”

In the end, Gertner ordered Hebshie released. “Like that first day I was found guilty, I was numb,” Hebshie says. “I still couldn’t believe it. I thought I was going to die in there.” He starts to cry, covering his eyes with his hand. Shortly after Hebshie’s release, prosecutors appealed Gertner’s ruling, though at press time they had yet to decide whether to proceed with the case. “A decision has not been made on that, it’s still under advisement,” says U.S. Attorney spokesperson Christina DiIorio-Sterling. Hebshie began the original trial convinced he would be exonerated. Now after more than three years in jail, he lives in terror that he’ll be sent back. “I am still so afraid they are going to come get me,” he says. “They still have that hold on me.”