Austin scientist attacks arson convictions
Inventions, including mylar balloon, finances Hurst's crusade against bad science.
By Chuck Lindell
Sunday, November 15, 2009
Hurst, dismissed by prosecutors as an academic blinded to legitimate arson cases by a soft spot for defendants, has been on the losing end of many cases as well. One that still bothers him was Cameron Todd Willingham, a Corsicana man executed in 2004 for a fire that killed his three young daughters.
Hurst, 72, was the first investigator to conclude that Willingham was convicted based on bogus arson evidence. Though his report came too late to delay the execution, Hurst's findings were later confirmed by eight nationally recognized fire investigators — launching a politically charged battle over the morality of capital punishment and leading Gov. Rick Perry to deride interference from "latter-day supposed experts."
To Hurst, the death penalty debate detracts from the crucial issue of ensuring that all arson investigations adhere to strict scientific principles.
As a former chief scientist for explosives companies with a doctorate in chemistry from Cambridge University, Hurst said he began helping defendants — work he does for free — after becoming disgusted by fire investigations based more on "old wives' tales and folklore" than science.
An example: For decades, many fire investigators passed down a belief, now known to be wrong, that accelerant-fueled fires burn hotter than "normal" fires. Warped bed springs, melted metal thresholds, spider-webbed or "crazed" window glass and flaking concrete foundations — which can occur in almost any kind of fire — were often taken as unshakable proof of arson.
"Most fire investigators have no technical training, no knowledge of chemistry, physics, math, biology, that kind of stuff," Hurst said. "So you have to teach them that if you see A, it must mean B. It's a paint-by-numbers way of evaluating fires, which are some of the most complex phenomena imaginable."
Professional associations disagree, noting that today's certified investigators receive comprehensive and continually updated training in fire science and investigative techniques.
'I was blown away'
In 1972, Hurst launched a lucrative sideline as an expert witness and consultant in lawsuits, mostly product liability claims against manufacturers whose items were suspected of causing a fire.
Sometimes he worked for plaintiffs, sometimes defendants, but it was all intellectually stimulating — pitting top-of-their-field scientists and engineers against each other.
By 1980, a steady stream of cases allowed Hurst to leave his position as chief scientist for Atlas Powder Co., where he tested and developed explosives and fire-extinguishing systems. A decade later, Hurst said, he was making $275,000 a year as a consultant.
Then came Sonia Cacy, convicted of killing her uncle, Bill Richardson, in their Fort Stockton home by dousing his bed with gasoline and setting him on fire in 1991.
When Cacy was granted a new sentencing hearing in 1995, Hurst took her case as a favor to her lawyer, whom he knew from previous civil cases. "I was blown away," he said. "I had never seen such bad work. It was primitive."
Hurst testified about what he saw as shoddy investigative techniques and a rush to judgment. But after jurors replaced Cacy's 55-year sentence with a 99-year term, it was time to switch direction.
Over the next three years, Hurst found two dozen fire investigators and other experts, all working for free, to attack the arson findings. He searched Richardson's still-boarded house and discovered that almost all of the man's sheets, shirts and chairs bore cigarette burns, casting doubt on investigators who quickly ruled out smoking as a possible fire cause. Most important, a crucial piece of evidence — a crime lab's finding of gasoline traces on Richardson's charred clothing — could not be replicated by other labs.
Instead of asking the courts to grant a new trial, which could have taken years with no guarantee of success, Cacy's lawyer presented the new arson evidence to the state parole board. In November 1998, after serving less than six years of her 99-year sentence, Cacy was granted parole.
"They kept telling us, 'We don't listen to that kind of stuff' — but they did listen," Hurst said.
Cacy left prison to a waiting job and pro bono lawyers ready to challenge her conviction, all lined up by Hurst.
She also had a special Thanksgiving dinner with Hurst and his wife, Gay, at a swank Austin restaurant. She doesn't remember its name, but her husband had to put on a jacket. As a regular, however, Hurst was let in wearing his trademark attire — black T-shirt, black sweatpants and suspenders.
The memory still tickles her. "For years, I used to send him suspenders for his birthdays," Cacy said.
A new, unpaid career
For Hurst, the Cacy case marked a new focus on criminal arson cases.
Thanks to media coverage, including a front-page Wall Street Journal story and a segment on "Dateline NBC," his phone started ringing, "and it hasn't stopped."
"They were defendants, and usually they didn't have a lawyer because they couldn't afford one," Hurst said. "I started looking, and what I found is that there are, for all practical purposes, an infinite number of bad arson cases. A whole lot of people are in prison using the same kind of baloney as in the Willingham case."
Hurst typically charges nothing for his work and transfers paying cases to fire investigators he respects, largely because he can.
He's earned millions of dollars from a series of inventions in the 1970s and '80s, including the modern formulation for Liquid Paper, fireworks that can't explode during the manufacturing process and a safe-to-transport explosive that is more powerful than dynamite.
(His pro bono work defuses a prosecutor's top question for planting doubt about a defense expert's motives: "How much money are you making from your testimony?" At Bryan's trial, he testified that his payment to date had been a tasty chicken pot casserole.)
Hurst also patented the Mylar balloon, which made him "a ton of money" most of which went to lawyers protecting his patent. So when Hurst later developed a method to use multiple Mylar sheets to form shapes — cartoon characters, for example — he avoided patent headaches by licensing the process as a trade secret.
His basement office, cluttered with pieces of evidence from prior investigations, still has an inflated, 2½-decade-old Minnie Mouse balloon.
"If you're careful in the manufacturing, a balloon could stay inflated essentially forever," Hurst said. "Manufacturers today don't want that much longevity, if you know what I mean. A month is good for them so people will buy another balloon."
Shining black armor
Hurst fits few images of a scientist, except maybe mad scientist.
His long gray-black hair, swept straight back, dips below his collar. He has a long white beard and a fondness for chewing tobacco. And there's the all-black clothing, adopted decades ago to hide soot stains.
Sheila Bryan didn't care about appearances, however, when she finally met the man behind the soothing phone voice. The two had conversed in her numerous collect calls to Austin after a Georgia appeals court granted Bryan a new trial in 1999, ruling that prosecutors had misled jurors in her original trial.
"When I hugged him, I was very — I felt very comforted," she said recently from her home in Omega, Ga. "He was my knight in shining armor who wears black."
Hurst went to work, testing the prosecution's theory that a distinctive burn pattern under the driver's side door was caused by a gasoline puddle. Prosecutors theorized that Bryan poured the liquid onto the front seat of her Mercury Cougar, struck a match and closed the door, leaving her mother in the passenger seat.
Two labs could find no trace of an accelerant from the 1996 fire, however, and Hurst realized he had found the most common mistake in shoddy arson investigations — the presence of "pour patterns" or "puddle patterns" that purportedly show where flammable liquids had burned.
Such patterns are common in fully involved, flashover fires in which all combustible items are burning — such as in Bryan's car — and in fires where embers fall from above. They are not by themselves proof that a flammable liquid was present, Hurst said.
By testing junked Cougars, Hurst showed jurors that the burn pattern came from a melted plastic strip on the door, not gasoline. Hurst also blamed the car's ignition switch, implicated in a rash of car fires in Fords and Mercurys. The trial turned when the prosecution's fire investigator said he ruled out the ignition switch, yet couldn't describe what it looked like or even if it was bigger than a breadbox.
Jurors found Bryan not guilty after only three hours of deliberation.
"If I start talking about him, I start crying," Bryan said of Hurst. "There's just no words to express the gratitude that I have for him."
Hurst figures he's examined several hundred criminal arson cases since Cacy, but poor health now keeps him from traveling to provide testimony as an expert witness.
He still reviews cases — he has a half-dozen working now — and prepares defense lawyers for arson cases by providing hours of intensive training in fire investigation.
From an art to science
Some fire experts are turned off by Hurst's penchant for publicly attacking investigators' conclusions he considers unscientific, particularly on professional listservs (mailing lists) on the Internet.
But Jim Mazerat, a 37-year fire investigator from New Orleans, says Hurst is well-served by his sharp attitude.
"He is like the father of the science-based fire investigation, along with a couple others who were willing to take fire investigation from what was basically an art to a science," Mazerat said. "That met a lot of resistance from your average fire investigator, so you have to have real character to be able to stand up to that."
Other fire experts fault Hurst for lacking formal training in arson investigation. Hurst says his training as a chemist suffices.
"I see fire as a bunch of physical chemical processes," he said. "I came up using my science background and running experiments, and I had years of access to testing facilities (as a corporate scientist from 1965-80), so anytime I wanted to blow something up or test an idea, I could."
Hurst's reliance on experiments and the scientific method continued after he retired from corporate science. He once poured charcoal lighter fluid on a car hood to test its appearance after burning. (The residue "pretty much wiped away," Hurst said.)
For another case, he and pal Ken Gibson built a wooden staircase to test a Canadian prosecutor's theory that gasoline was used to start a fatal fire. After burning furiously, the gas fire barely scorched the replacement staircase. However, burning embers placed on the wood — mimicking conditions in the real fire — provided a perfect match for burns on the real staircase.
Asked if he fears freeing a guilty arsonist, Hurst replies that he trusts his experiments and experience with the scientific method.
"You consider the possibility that you might be wrong. But that's why you have one standard: Either there is evidence of arson or there isn't."
||Truth in Justice