Up in Smoke
One in every five Massachusetts fires used to be blamed on arson. Today it's something like one in a hundred. What changed? Arson investigation now depends on science rather than instinct. This man has finally been freed, but it's anyone's guess how many other innocent people are still in jail.
State trooper David Domingos arrived in Taunton at 2 o’clock on a Saturday afternoon in 2001 to find the town green choked beneath a pall of thick gray smoke. Domingos, the State Fire Marshal Office’s chief investigator for the South Shore and Cape Cod, was wearing his “turnout gear” — fire hat, heavy reflective jacket, and flame-retardant boots — as he pushed his way through the police tape to where firefighters were braced on the sidewalk, aiming jets of water at a burning building.
The blaze had begun in the Main Street Lottery and News convenience store, he was told, spreading from there into a jewelry store and a sports-memorabilia shop that shared the small brick storefront. Heavy walls and a sturdy tin roof thwarted attempts to douse the flames for four hours. During that time, said one firefighter, the conditions inside were so intense that it was “like closing your eyes and sticking your head inside an oven.” Finally, the roof exploded from the intensity of the heat, collapsing into a hole through which the blaze could be extinguished.
Toward dusk, Domingos pushed his way through the broken glass in the front door to look inside the building, but was unable to get more than a few feet through the smoking debris. He settled for taking photos and witness statements at the scene, and returned early the next morning for a more thorough investigation. He and his crew removed timber after timber, looking for burn marks and charring patterns that might show where the fire had started. The investigation took them to the back, left wall of the shop. Domingos called over the K-9 officer, Doug Lynch, who was leading a black Lab named Billy around the scene. Billy pointed her nose to the ground below a telltale V-shaped pattern that often reveals a fire’s point of origin. She went into a seated position, indicating the presence of a liquid “accelerant” like gasoline. The fire, Domingos concluded, had been intentionally set.
That afternoon, Domingos sat in on an interrogation of Jimmy Hebshie, the store’s owner. Hebshie told Taunton police that he’d left his store at 1:30, just before the fire started. Domingos later testified in court that Hebshie also revealed he owed $3,500 to the state lottery commission. A few days after that, the store owner submitted a claim on his insurance policy, which was interpreted as a motive to burn down his shop. A year later, in May 2002, he was indicted for arson. It took four years for Hebshie to actually stand trial, given repeated delays related to his poor health, but when he finally did, a jury convicted him. “I know you’ve heard this many times before,” he said at his sentencing, his voice wavering as he read from a statement, “but I need to say this to you and the court: I am not guilty of this crime.”
Judge Nancy Gertner sentenced him to 15 years, starting in June 2007.
As Morgan Freeman’s character tells us in the film The Shawshank Redemption, “everybody’s innocent” in prison — either they didn’t do the crime, or, “Lawyer fucked me.” But Hebshie is not the only person convicted of arson in recent years who has proclaimed his innocence. Even as Hebshie’s case was winding its way through the courts, a death-row inmate in Texas named Cameron Todd Willingham continued to insist that he did not set the 1991 house fire that killed his three children. His lawyer submitted a petition questioning the evidence in January 2004, but that was too late to stay his execution, which occurred just a month later. Since Willingham was put to death, however, investigations — such as an award-winning New Yorker story — have all but declared him innocent, the victim of outdated fire-investigation techniques that relied on hunches and old wives’ tales more than science.
“We didn’t have very good techniques back then,” says John Lentini, who has investigated more than 2,000 fires and whose research largely inspired the case for Willingham’s exoneration. “There were all these rules of thumb you can find in the literature at the National Fire Academy that are just wrong.”
He reached that conclusion back in 1990, when prosecutors contacted him for help in a suspected arson in Jacksonville, Florida. At the time, Lentini still believed what most arson investigators did: that certain burn patterns could only come from an accelerant — meaning that if you encountered those patterns, you likely had an arson on your hands. To prove it, Lentini went to the extravagant length of attempting to re-create the Jacksonville fire without gasoline in a condemned house two doors down from the original. He expected the attempt to be futile, but the results shocked him. “Damned if the house didn’t burn exactly how the defendant said it burned,” he says. “That was my epiphany. As I looked at more and more cases, I saw there were pretty widespread incorrect determinations.” And it turned out that many other signs that supposedly signified accelerants used in arsons — charring between floorboards, melted bedsprings, a phenomenon known as “crazed glass” — were also red herrings. Even the “V” patterns investigators rely on to point to the source of a fire can be false alarms.
From the beginning, fire investigators were skeptical, even hostile, when it came to Lentini’s conclusions. Minds didn’t really change until tests conducted by ATF agents between 2005 and 2007 showed that when relying on burn patterns alone, trained investigators were no better at determining the origins of fires than if they had simply guessed. In the past five years, more than a dozen arson convictions have been overturned based on post-trial reviews of evidence — a fraction of the hundreds of people Lentini believes are still wrongly imprisoned. So when a lawyer working on Hebshie’s appeal sent Lentini the trial transcript in 2007, he was happy to review it. Very quickly, he found serious flaws in the prosecution’s case.
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.
As if the facts of the case were laid out, the argument for arson rested on the fire starting on the first floor, where investigators discovered the burn marks and Billy identified the accelerant. Yet a firefighter with a thermal camera who’d entered the store found hot spots behind all four walls, which suggested to Lentini that the fire came up from the basement. Oddly, there didn’t seem to be any documentation in the trial evidence of the basement’s condition. “I went looking for the photographs, and I found none,” Lentini says. “I was very skeptical of the claim someone had actually gone into the basement and looked at it carefully enough to eliminate it.”
Domingos’s own report makes no mention of the condition of the cellar. During the trial, he testified that he’d gone down there and seen very little damage. He hadn’t taken photos, he said, in part because he was trying to save film. Lentini instructed Kempthorne to call the insurance company’s investigator and ask for his photos. But that investigator later testified that he’d been unable to get into the basement when he visited the site because it was blocked by debris. That was a day after Domingos had done his investigation.
Lentini says he’s amazed that an investigator wouldn’t take photos to show he’d ruled out accidental causes — especially someone as experienced as Domingos, who’d investigated more than 500 fires by the time of the one at Hebshie’s store. But the more Lentini looked at the evidence in the case, the more he questioned the conclusions. There was another “V” pattern on the wall several feet from where Domingos said the fire started. And there was the fact that the sample identified by Billy the dog as an accelerant had come back as “light petroleum distillate,” which is most commonly found in replacement fluid for Zippo-type lighters. That kind of fluid is a poor fire starter, Lentini says, and is something Hebshie sold in his store. The lighter fluid could have easily been knocked off a shelf by the force of a fire hose. There’s no way of telling, however, since Domingos’s team didn’t test other areas of the shop for the liquid. Add it all up, and Lentini believes there was a rush to judgment that the fire was arson, followed by an attempt to find evidence to prove it. “There is a certain arrogance that pervades this profession,” he says. “There are many fire investigators who refuse to write ‘undetermined.’ They leap to conclusions.”
After reading Lentini’s analysis, Kempthorne was stunned at how passive Hebshie’s lawyers had been during the trial — especially since by that time, Hebshie’s case wasn’t the only one raising questions about fire investigations in Massachusetts.
Humberto Correia said he was taking out the trash on the morning of September 30, 1996, when he noticed a fire in his photo shop on Broadway in Taunton — just down the street from where Hebshie’s store would burn years later. At the same time, two police officers also saw the flames and called in a report of the blaze, which was quickly extinguished. Taunton fire officials and a state-trooper colleague of Domingos’s named Frank Hall conducted an investigation and concluded that Correia had intentionally set the fire in order to collect insurance money.
At the ensuing federal trial, Correia was convicted of arson and mail fraud, which carried a maximum sentence of 45 years. But federal judge Rya Zobel took the unusual step of dismissing the verdict and ordering a new trial. The case against Correia “was crafted from a patchwork of circumstantial evidence, largely unrebutted by the defense,” Zobel wrote. Correia’s lawyer was James Fagan, then a state representative from Taunton who also ran a private law practice. In the retrial, Correia’s new lawyer showed that prosecutors had virtually no evidence to connect Correia to the scene or even to consider the fire arson. All five charges were dismissed.
Then there was the case of Kenny Davis. On Thanksgiving Day in 2003 he was sitting at his parents’ kitchen table in Rockland when police came to the house and arrested him for allegedly setting fire to the Carver home of his on-again, off-again girlfriend Kerryann Smith, who was married to a local police dispatcher. Davis insisted he had merely gone by the house to see Smith after Thanksgiving dinner, and noticed the smoke himself just as Smith was pulling into the driveway. Davis was eventually charged with both arson and breaking and entering.
Again, it was Domingos who’d investigated the scene. In his report, he stated that the fire started in a pile of lumber in the basement and that “[a]ll possible accidental sources of ignition were eliminated and only human intervention could not be eliminated.” Domingos and his team ruled out the electrical system, declaring it was in “good shape.” Meanwhile, an accelerant-sniffing dog hit on a patch of dirt; tests identified a sample of medium petroleum distillate similar to charcoal lighter fluid. Three other samples identified by the dog, however — including one directly under the lumber pile — turned up negative.
In addition, there was clear evidence that the electrical system could be at fault: A wire showed signs of an electrical short directly above the wood pile. “That wire is underneath a shower; you get wires wet, eventually there will be a crack, and if there is anything it can set on fire, it will,” says Gerald Hurst, the Texas investigator who first raised questions about the Willingham case and reviewed the Davis case after trial. “You look at that and say, ‘Can I eliminate the accidental cause? No, I can’t.’”
In the end, Davis was found guilty of arson and sentenced to four years in prison. (He was acquitted of breaking and entering.) Davis and his family blame his lawyer, Jack Atwood, for not sufficiently addressing the faulty-wire evidence in court. Atwood dismisses the criticism: “When a defendant loses, he doesn’t blame anyone other than the defense attorney.”
Whatever happened in the Davis trial, Gretchen Bennett, executive director of the New England Innocence Project, says ineffective counsel is a danger in any case involving very technical forensic evidence, but is of particular concern in arson cases. “Lawyers don’t educate themselves about the science,” she says. Bennett’s is one of the few chapters of the Innocence Project that will look at questionable cases that hinge on scientific evidence other than DNA. Bennett specifically chose arson cases after a report in 2009 by the National Research Council blasted the quality of evidence in those investigations.
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.”
Source URL: http://www.bostonmagazine.com/2011/03/up-in-smoke-arson-investigations-in-massachusetts/