Texas' debate over arson science is reignited

Posted Sunday, Jan. 08, 2012

By Yamil Berard

It wasn't too difficult to convince a jury that Garland Leon "Butch" Martin of Midland was a wife abuser and a baby killer.

The day in 1998 that his common-law wife, Marcia Pool, threatened to leave him because of abuse, their house went up in flames, killing Pool and their 20-month-old daughter. Martin, who was not at home, was convicted of arson and is serving three concurrent life sentences.

But now, modern science may impugn the jury's decision. Martin's conviction is one that some believe was based at least in part on "junk" science.

A number of forensic scientists and others are calling for additional reviews of arson-murder cases like Martin's because evidence was analyzed by methods now called into question or proved wrong. Members of the Texas Forensic Science Commission say they don't have the jurisdiction to investigate these cases, but they have told the Texas Innocence Project to team up with the State Fire Marshal's Office to determine whether the state has incarcerated people for arson-murders based on outdated science.

"To the extent that this review goes on, it is because of the voluntary participation of these agencies who think it's the right thing to do," commission attorney Lynn Robitaille said. The commission is expected to discuss the issue in more detail at its meeting Friday.

At issue, however, is whether a comprehensive review of such cases can or will be done. Skeptics say that the assessments would require a lot of time and resources and that such extensive work may not be possible. An estimated 700 to 900 people are in Texas prisons for arson-related crimes, according to various sources. Of those, about 100 are from Tarrant and Dallas counties, state inmate records show.

Furthermore, the marshal's office, which early on pledged to assist such a review, is in transition. Any success in reviewing cases may largely depend on whether the new state fire marshal makes such an effort a priority, some say.

In a statement responding to questions from the Star-Telegram, the marshal's office said that it is still evaluating the commission's recommendations and hasn't adopted any new procedures but that the office's commitment to improve the quality of fire investigations in Texas is unchanged.

The commission has urged the marshal's office to review its standards for arson investigations because of concerns about its work in the case of Cameron Todd Willingham. The former Corsicana mechanic was executed in 2004 for the arson that killed his three young daughters. Commissioners have said that Willingham's conviction was based on outdated arson science.

Another obstacle to such a comprehensive review is that criminal defense attorneys don't have the time to review such cases, either. And if they did, it would be very costly, they say.

Plus, for every case that comes under scrutiny, someone has to acknowledge that mistakes have been made. That may not be popular.

"Everybody's got a dog in the hunt," said Gerald L. Hurst, a Cambridge-educated chemist and arson expert in Austin who is examining Martin's case.

Inmate questionnaires and student reviews

It's also unclear how many arson convictions need new interpretation of the evidence.

Maybe only a handful of cases can be pinpointed to junk science, said Jeff Blackburn, founder and head of the Texas Innocence Project. Many more cases may be flawed because of misleading testimony about the science used to back arson findings, he said.

It's too early to know, he said. "But we are completely devoted to doing this," he said.

The Innocence Project will use the same methodology as in past reviews of wrongful convictions.

It has swamped state prisons with multiple-page questionnaires for inmates to fill out. That can gauge the need for a potential review of a case, Blackburn said.

Once an inmate responds, the information will likely be entered into a massive database for review, Robitaille said.

"This is a time-consuming process," she said.

Law interns and students will likely review data and highlight cases. The more promising ones will be reviewed by Blackburn and other Innocence Project attorneys. Then, the State Fire Marshal's Office will likely weigh in.

"There's nothing for them to do until they have a list of cases to look at," Robitaille said.

To examine such cases at the local level, teams of law students could be enlisted to read court testimony and cull transcripts, said former Forensic Science Commissioner Lance Evans, a Fort Worth criminal defense attorney. Pro bono committees of local attorneys could be organized to work on individual cases. Those entities could prioritize cases based on pleas.

Hurst, however, says some interpretations of fire evidence are so bad that they can be eyeballed and spotted in two hours.

"It can be done," Hurst said. "This is not an impossible task. I know because that is what I do."

Case is said to show the need for review

The clincher for Martin's conviction was a pour pattern in the home's master bedroom that indicated the presence of a flammable liquid: Norpar in lamp oil.

Today's fire scientists note that Norpar is used in a wide range of household products. That puts the arson finding in question, defense experts said.

The case demonstrates why some felony arson convictions need reviewing, Evans said.

"Our investigation with the Forensic Science Commission showed that a significant portion of fire investigation 'science' was little more than an oral history passed down from older arson investigator to newer arson investigator -- almost like an apprenticeship program," Evans said.

For example, more than a decade ago, certain pour patterns and heat indicators prompted investigators to immediately conclude that accelerants were present. With that, an arson finding was determined, even without supporting lab results.

Today, fire scientists like John J. Lentini, who is based in Florida, know that a number of cases have no such absolutes and that in some cases, the cause of a fire may never be determined.

But, he said, arson often isn't subtle.

"It's usually pretty obvious when you walk in and you find gas cans or it smells like gasoline or you find something that's obvious," Lentini said.

Hurst calls the older methods "folklore" and he estimates that at least 100 of the 700-some arson felony cases were based on that. The science in cases older than 15 years was almost always in question, he said.

But even "modern" cases need scrutiny, he said. "They still get it wrong because they're still using those outdated methods," he said.

Take the 2004 case of Ron Winn of North Richland Hills. He was on his way to prison until fire science exonerated him.

Winn was remodeling his house when it burned down. A police dog identified accelerant after a few moments in the charred house.

Winn "was arrested initially," Fort Worth defense attorney Richard Henderson said. "The arrest was videotaped. The police were all over him."

Henderson then brought in Hurst, who conducted a forensic analysis.

It turned out that Winn's wife had brought home a jug of gasoline for the lawn mower. She put the jug on the kitchen counter, where he was working with equipment on an extension cord. As he was working, the cord shifted, knocking down the gas jug and a lamp, breaking a light bulb and setting the house on fire, Hurst said.

"People, use your head," Hurst said. "People don't get into heavy-duty remodeling and actually putting in physical labor and then they just decide to burn the place down while in the middle of a project.

"Give me a better motive."

Prosecutors eventually dismissed the case, Henderson said.

"They did the right thing," he said.

Yamil Berard, 817-390-7705

Truth in Justice