Recently, Prof. Theresa Newman, co-director of the Duke Law Wrongful Convictions Clinic, and I collaborated on a motion for post conviction relief in an arson case. I think it turned out well. It lays out the framework of a legal strategy to pursue a claim of “newly discovered evidence” in an arson case based upon advances in fire science, and contains citations to current fire science literature and to recognized experts in the field of fire science & arson investigation in support of that claim. I know of several folks who are currently working on arson cases, and I’m sure there must be others; so I thought this might save some effort in what is a lengthy and difficult process. Perhaps you can use some of the language and/or the cited references. The “motion” is attached here for your reference. All case-specific references have been deleted or obscured, and the case-specific reports of experts are not included, but the cited references to publicly available information are appended after the following link to the generic motion:
Lentini: The Mythology of Arson_Investigation
Lentini: Nightmare On Lime Street
When assessing a post conviction claim of “newly discovered evidence” based upon the new understandings of current fire science about fire scene markers for arson, and how it relates to the issue of “discoverability at time of trial”, there are three major dates of importance:
1992 The National Fire Protection Association (NFPA) published the first edition of its Standard 921 – Guide for Fire and Explosion Investigations. NFPA 921 dramatically “changed the rules” for how a fire inspector makes a determination of arson. One of the most significant changes introduced by NFPA 921 was an understanding of the phenomenon of “flashover” and how it can dramatically change the meaning of certain post-fire “markers” that were traditionally relied upon to indicate arson. Flashover occurs when the temperature at the ceiling of a room containing a burning object reaches 930-1,100 °F, causing all combustable objects in the room to spontaneously ignite. This phenomenon, along with the subsequent ventilation-controlled burning in the room, can create indicators of arson when arson was not, in fact, the source of the fire.
1993 NFPA published the first edition of its Standard 1033 – Standard for Professional Qualifications for Fire Investigator. Prior to 1993, fire inspectors universally were regular firefighters who were trained under the mentorship of an “experienced” fire investigator. Understandings about arson and it’s signs were completely anecdotal, and passed down like folklore from one inspector to another. In many cases, these understandings were wrong. There did exist things like 72-hour training classes for fire inspectors, but these too taught the old and mistaken tenets of fire inspection. NFPA 1033 set minimum requirements for formal, post secondary school education and training that many practicing fire inspectors, to this day, do not meet.
2000 The US Department of Justice issued its report, Fire and Arson Scene Evidence: A Guide for Public Safety Personnel, endorsing NFPA 921 as the definitive standard to be used in performing arson investigations. The National Association of Fire Investigators also endorsed NFPA 921 for the first time.
It should be noted that when NFPA 921 and NFPA 1033 were first published in 1992 and 1993, the reaction from the extant fire inspection community in the US was one of one of objection and rejection. Even after publication of the US DOJ report in 2000, there were, and still are, many fire inspectors who do not meet the minimum requirement of NFPA 1033, and who are not knowledgable of the teachings of NPFA 921 regarding the new understandings of fire science. In fact, I am currently involved in a case from 2003 in which this is precisely the situation. Acceptance and adoption of these standards in the US has been glacially slow. This does not, however, change the fact that the old (pre-921, 1033) methods and practices are “wrong”, and the new (post-921, 1033) methods and practices are “right.”
So …. there are some “gray areas” in terms of “discoverability.” If the fire and subsequent scene inspection took place prior to 1992, the issue of discoverability should be clear. From 1992 to 2000, it’s a little less clear. The knowledge existed, but in most cases, it was not known and used by fire inspector(s). The fact that fire inspectors testify as “experts” probably has some legal bearing on this in terms of discoverability (I’m not an attorney). Post 2000, it is even less clear, but the question remains: did the fire inspector adhere to NFPA 921 and did he meet the requirements of NFPA 1033?
You may also wish to review previous WCB posts concerning Arson:
• http://wrongfulconvictionsblog.org/2012/03/02/arson-investigation-after-decades-of-junk-science/ This article contains a link to a substantial treatise on post conviction arson strategies. It also includes a link to a video demonstrating flashover.
I also highly recommend that you view the documentary film, Incendiary: The Willingham Case. It’s downloadable from iTunes, and may be available to stream online.