Boston Globe



New trial ordered in Taunton arson case
Judge cites flawed evidence, errors by defense counsel

By Shelley Murphy
Globe Staff / November 16, 2010

A federal judge ordered a new trial yesterday for a man convicted of torching his Taunton convenience store in 2001, ruling that prosecutors presented flawed scientific evidence to persuade jurors that the cause of the fire was arson.

In a 69-page decision, US District Judge Nancy Gertner wrote that by the time James Hebshie went to trial in 2006, it had been widely reported that people had been convicted, and perhaps even executed, on flawed arson evidence.

Yet, she said, Hebshie’s lawyers failed to challenge evidence presented at his trial, even though they had been warned by another lawyer and scientific experts that there were problems with arson expert testimony, laboratory analysis, and canine evidence being offered.

A canine handler was wrongly allowed to testify to “an almost mystical account’’ of the capabilities of Billy, an accelerant-detection dog, and make unsubstantiated statements about the dog’s accuracy, Gertner wrote.

“Questionable theorizing about arson, about Billy’s mystical prowess, and the generic laboratory results were presented as ‘science’ to the jury, and, as a result, Hebshie was convicted,’’ Gertner wrote. She added that much of the evidence should have been excluded and that, if it had, jurors may have acquitted Hebshie.

“This court recognizes the importance of finality in criminal cases, particularly after time and resources have gone into the trial and after a jury has pronounced guilt,’’ she wrote. “But finality cannot trump fairness or justice.’’

Gertner said Hebshie’s trial attorneys, John T. Spinale and his son, John S. Spinale, were ineffective and failed to give Hebshie a constitutionally acceptable defense. The younger Spinale is currently a juvenile court judge. The Spinales could not be reached for comment last night.

Gertner ordered a new trial for Hebshie, 64, of Brockton, who has been imprisoned at the Federal Medical Center Devens in Ayer since June 2007. He was sentenced to a 15-year mandatory minimum sentence following his conviction for arson, use of fire to commit a felony, mail fraud, and aiding and abetting. He has always proclaimed his innocence.

Christina DiIorio-Sterling, a spokeswoman for the US attorney’s office, would not comment on whether prosecutors will retry Hebshie. “We are reviewing the ruling,’’ she said.

Salem attorney Jeanne M. Kempthorne began representing Hebshie after his conviction. “There wasn’t any evidence against him,’’ she said. “It was just so deficient.’’

She added: “You have investigators who apply principles of science in a shoddy manner, and you have prosecutors and, unfortunately, defense lawyers who aren’t probing hard enough to see whether there is any real content to the opinions that these so-called experts are proffering. And that is an everyday problem.’’

The fire broke out on the afternoon of April 21, 2001, in a two-story commercial building in Taunton that housed Hebshie’s convenience store, Main Street Lottery & News Store, and two other businesses. Hebshie, who had left the store seven minutes earlier, became a suspect almost immediately.

The government asserted that the fire started in Hebshie’s store and that he used an accelerant to start the blaze in order to collect on a $30,000 insurance policy. The defense’s theory was that the fire had started accidentally in the basement.

State Trooper David Domingos, an investigator in State Fire Marshal Stephen D. Coan’s office, concluded that the fire started in the wall of Hebshie’s store, based on his interpretation of certain burn patterns, according to Gertner’s decision.

The judge said Domingos testified that he went to the basement and discounted it as the origin of the fire, but his report makes no mention of the basement and does not indicate he entered that area. She also said he did not take any photographs of the basement.

One of the nation’s leading fire scientists, John Lentini, who has investigated more than 2,000 fires, reviewed Hebshie’s case earlier this year and concluded that investigators misinterpreted evidence that indicated that the fire started in the basement.

The dog was brought in to search for chemicals in the area where Domingos believed the fire started and registered an alert. The State Police Crime Laboratory identified the sample taken from the area as a light petroleum distillate, but it did not specify a chemical.

Gertner was critical of the methodology, noting that the dog was not brought to other areas, including the basement, to search for accelerants, and investigators failed to take additional samples from the building to determine whether the same chemical was found elsewhere. The judge said it was possible the chemical was from products sold or used in the convenience store.

“The rush to judgment problem was huge here,’’ Kempthorne said. “You could tell the prosecutors in this case that the science was wrong. They would not listen.’’

Shelley Murphy can be reached at shmurphy@globe.com.


Arson
Truth in Justice