more on Did bad science lead to the execution of an innocent man?

[David Farber <dave () farber net>]

Begin forwarded message:

From: Eric Weisberg <weisberg () texoma net>
Date: May 10, 2006 10:15:53 PM EDT
To: dave () farber net
Cc: ip () v2 listbox com
Subject: Re: [IP] Did bad science lead to the execution of an  
innocent man?

John Adams wrote:
> ...Here's the money quote (and I do mean money, come to think of it,
> because proving arson is a good way for insurance companies to get
> out of paying for damages--I wonder whether, when there's money at
> stake rather than someone's life, higher standards are used):
> ...  Churchward said that arson investigations began to change
> dramatically in 1992 after the National Fire Protection Assn. adopted
> new procedures calling for more scientific rigor. Nonetheless,
> Churchward and Lentini said many fire investigators were resistant to
> change.
>
>   ...Their report urged heightened review of fire investigations. "To
> the extent that there are still investigators in Texas and elsewhere
> who [misinterpret fires], there will continue to be serious
> miscarriages of justice," the report states.
I have real experience, personal and professional, with these  
issues.  Years ago, I tried a case in which the jury found a major  
insurance
company liable for "deceptive acts or practices in the business of  
insurance" for wrongfully denying a fire claim.  The insurer's  
chemist "found"
a hydrocarbon accellerant  in the charred flooring and testified that  
the burn patterns were typical of splashed fuel.
He showed the jury chromatograms of the samples.  He put on an  
impressive show, speaking authoritatively and without
qualification.  He pointed to the peaks and valleys of the graph,  
telling the jury that anyone, including them, could clearly see the  
signature
of the accellerant used and know that this was a set fire.
I brought in the head of the Dallas Crime Lab who testified
that there was no evidence of hydrocarbons in the samples and that  
his own mass spectrometry tests confirmed such conclusion.  On cross-
examination, the insurance company's expert changed his testimony,  
claiming to see the products of hydrocarbon degradation from heat in  
the sample,
arguing that you could add various pieces of the graph together to  
get the profile of a hydrocarbon.  Again, the crime lab expert said  
that was BS.
The picture was simply from burned wood floors.  He privately told me  
that such phony testimony was quite common in arson cases.

Some time later, had a similar experience with a $34,000 claim  for a  
fire at my  home.  I actually saw the fire start in a piece of carpet  
I had negligently
left over a floor furnace in my 2 year old's bedroom.
I was lying with him so his mother, who had just come in from nursing  
our four day old infant who was still
in the hospital with jaundice, could get some sleep.  My wife got out  
of the house with the two year old while I called 911.  When I got  
outside and
did not see them, I panicked, thinking they were still in the house,  
and went back in, getting burned by the heat.
When I could not find them in the house, I jumped out a window,  
naked, mutilating my bare feet on some bush stobs.
A neighbor brought a blanket to cover me.

Our insurance company denied the claim based upon a phony fire  
investigation which "found" tell-tale burn patterns and a lab report  
indicating
accellerant.  We had absolutely no motive for burning the house, and  
the circumstances obviously refuted any suspicion.  However, we had  
to file
suit and fight the issues as if we were a criminals.  If we had to  
experience such accusation, you may be certain that others with less  
credibility
would be subject to worse treatment, including false prosecution.

Arson, by the way, may be proven in many, if not all states by  
circumstantial evidence--motive, means and opportunity--without any  
direct proof.
See Davis v. State, 630 S.W.2d 532 (Tex. App. Amarillo,  1982),  
holding that circumstantial evidence supported an arson conviction  
where a
man that looked and walked like appellant was seen setting fires and  
later was seen leaving the site of the fire at the time it was  
started, thus
excluding hypothesis other than his guilt.  And,  Taylor v. State,  
735 S.W.2d 930 (Tex. App.  Dallas,  1987), which held

It is not required that the circumstances should to a moral certainty  
actually exclude every hypothesis that the act may have been
committed by another person, but that the hypothesis intended is a  
reasonable one consistent with the facts proved and the
circumstances, and the supposition that the act may have been  
committed by another person must not be out of harmony with the  
evidence.
.

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