Burning Injustice: Part Two
Expert: Arson teams using outdated techniques

Posted: April 25, 2008 03:59 PM EDT

Sandra Chapman/13 Investigates

Indianapolis - They are supposed to be Indiana's elite in fire investigation. But a nationally renown scientist says state arson teams here and across the country are using outdated, unproven techniques. Some experts say it's putting innocent suspects behind bars and even to death.

Cameron Todd Willingham and Ernest Willis both sat on death row convicted of setting separate deadly fires. Their court cases were largely based on untested, outdated techniques. 
Willingham was executed in Texas in 2004. Willis walked free and clear after spending 17 years waiting to die.

Upon his release, a tearful Willis told reporters his wife "helped me get through the last six years."

From Texas to Indiana, courts are challenging burning cases of legal disaster.

Rob Montgomery of Rising Sun has yet to get over his arson conviction.  

"No. I've learned to live with it," he told 13 Investigates.

Montgomery served 14 months in prison. He was accused and convicted of burning down his own house.  Now, eight years later, he faces a retrial on the same charges.  

His first case, full of scientific holes, was reversed by the Indiana Court of Appeals.

"He said he found an accelerant in the house," Montgomery said of the Indiana State Fire Marshal who handled his case. "There's no evidence of that whatsoever," he said with disgust.

State Fire Investigator Andy Long said a burned hole in the floor and a warning from his hydrocarbon detector was proof enough.  For 30 years that was the accepted, untested, method. Montgomery was convicted despite ten negative lab results for accelerants from the state crime lab. The rationale: fire burns up the evidence.

"The problem with it is, you can take tennis shoes and burn them up and get the hydrocarbon readings that are consistent with gasoline, charcoal and lighter fluid," said Dan Churchward of Fort Wayne.

Churchward is a certified electrical engineer and fire consultant. In 2001, he chaired a national technical committee to review fire investigation standards. It was a first for the industry. 

What the committee found sparked a firestorm.

"We've got a body of knowledge out there that people are relying on that's incorrect," he confirmed.  "We started realizing they're not only woefully inadequate, they were woefully wrong."

"We killed an innocent man," Churchward said, referring to Todd Willingham and the lack of scientific fire standards.  "How many others have we killed?" he questioned. "It's horrible. If we were doctors treating patients and we tolerated this kind of behavior, we would be vilified."

Instead, Churchward and his committee took intense heat. Investigators didn't like the new National Fire Protection standards called NFPA 921.

Some Indiana investigators still don't embrace it. They don't have to.

Former Indiana Chief Investigator Bob Dean doesn't dispute the resistance across Indiana.
Ernest Willis
Ernest Willis

Dan Chruchward
Dan Churchward, electrical engineer and fire consultant

Bob Dean
Former Indiana Chief Investigator Bob Dean

Dr. Gerald Hurst
Dr. Gerald Hurst

"When a national organization says you have to do this, you have to do that, of course they're going to say 'no, we don't," said Dean. But he also agrees it's a problem to have inconsistent fire investigation standards.

"Yes, it is a very big disservice," he told 13 Investigates.

It's an issue in Rob Montgomery's case. 
According to court records, State Investigator Andy Long failed to test a lamp near the point of origin, and concluded that two bedrooms were torched. But Long dismissed the possibility that falling ceiling embers set one bed on fire.

Long is now retired. Bob Dean is his former chief. 

"921 is a good guideline to follow for fire investigators," said Dean, but added, "Nobody can enforce it so how can I say you have to follow this guideline when nobody can enforce that guideline?"

Even Montgomery's own original defense expert was found lacking.

Thomas Hulse, the chief fire engineer at IUPUI has written articles criticizing NFPA 921. Months ago, 13 Investigates revealed he has degrees from two reported diploma mills.

13 Investigates went to his Indianapolis office to talk with him about his role in Montgomery's first trial.

"I'm not going to talk about the case," said Hulse.

"I trusted him, I trusted him with my life," Montgomery said in disbelief. He was not aware that Hulse had degrees from two reported diploma mills.

Now facing a second trial, Montgomery wants his name cleared and all arson investigators held to the fire on science.

The Montgomerys have a new attorney and have turned to an arson mastermind in Austin, Texas for help. They didn't get someone who sets fires, but a Cambridge trained chemist who is taking on the life and death fight for those convicted of arson on what experts call "junk science."

That chemist is Dr. Gerald Hurst.

"This is a sorry, sorry situation. There's no way you could get justice out of this," Hurst said from his office in the basement of his Austin home.

Dr. Hurst has won plenty of court fights. In a room off his office, boxes of documents from arson cases all across the country are stacked up.

Hurst was the expert who took on the death row cases that prompted new standards. Losing Todd Willingham to execution set his mission afire. 

"I began raising hell about it," he said.
For Hurst it's simple: without undisputable evidence, arson convictions must be based on science, not a suspect's likeability, legal history or lack of money.

13 Investigates asked Dr. Hurst what gives him the right to say fire investigators in Indiana and across the country are not doing it right.

"Nobody has ever come to me with something I've reported, taken one of my 25 to 30 page reports and said you got this wrong," he explained.

Dan Churchward is well aware of Dr. Hurst's work. Churchward also was part of an independent team of experts asked to review the Willingham and Willis cases. That team came to the same conclusion as Hurst and determined the fires were not arson.
"It makes me feel very bad that we as a fire investigation community tolerate such standards," added Churchward.

In Montgomery's case, Hurst says the fire broke out on a chest of drawers. That's where the lamp sat. He says the prosecutor didn't want the insurance company investigators to testify because one could not rule out the lamp and the other rejected the state's claim that two bedrooms were torched.

 "I mean, that is dynamite. That blows away the multiple origin case," said Hurst. He says multiple fire origins are generally linked to arson determinations.

"Worse than that, he gave the insurance company precedence over the state to investigate a supposed crime. This is unbelievable," added Hurst.

But the Ohio County prosecutor isn't backing down.

"Mr. Hurst's evidence was not compelling to me that Mr. Montgomery was innocent," said Prosecutor Aaron Negangard, who interviewed Dr. Hurst for the upcoming trial. Negangard says it will be up to a jury to determine which expert to believe.

"I believe in the criminal justice system. If they decide he's not guilty I will be satisfied with that result," said Negangard.

Former State Chief Investigator Bob Dean says the court system provides checks and balances for the work of fire investigators.   

"If the defense does their job and we're wrong, he's going to prove it wrong," he insists.

But that's a far cry from the standards the Montgomerys want for arson suspects. Norma Montgomery vows to fight until their voices are heard.

"Someday we will win and this will be made into a law that they have to go by the science," she said.

The State Fire Marshal's office has ten fire districts across Indiana with an investigator assigned to each.  Investigators must complete the Indiana Law Enforcement Academy and have five years of fire investigation experience.
In 2003, fire investigators were re-certified by the National Fire Academy through FEMA.  

The State Fire Marshal's office still regards the new recommended standards from the NFPA 921 (National Fire Protection Association 921) simply as guidelines. With no change in state law, field supervisors will continue reviewing arson cases with no mandated standards.

Burning Injustice, Part One

Truth in Justice