The Philadelphia Inquirer; Jan. 14, 2007

Arson science - to the rescue?

Advances are changing the way investigators interpret evidence and bringing hope to those who say they were wrongly convicted.

By Emilie Lounsberry
Inquirer Staff Writer

The fire swept quickly through the red brick rowhouse. It consumed the sofa and love seat and caught the curtains, burning so brightly that an orange glow filled narrow Carver Street in Northeast Philadelphia's Summerdale section.

Daniel Dougherty, a 26-year-old mechanic with a drinking problem, ran out of the fiery home, cried for help, and grabbed a garden hose to try to douse the flames. But it was no use. The fire was relentless, and its choking smoke soon reached his two sons, Danny Jr., 4, and John, 3, upstairs in their beds.

Nearly 22 years later, from a cell on Pennsylvania's death row, Dougherty is fighting to prove he did not set the blaze that took the boys' lives - and is counting on an evolving science to save his own.

New methods of analysis and computer simulation are transforming arson investigators' understanding of how fires start and spread. Some of the old axioms have been debunked; others have been shown to be true much of the time, but not always.

On the morning of Aug. 24, 1985, an assistant Philadelphia fire marshal examined burn patterns and concluded that the Carver Street inferno had three points of origin, a classic indication of arson. Today, though, burn patterns are known to be potentially deceiving.

In a petition filed in November in the Philadelphia Court of Common Pleas, Dougherty's lawyers cite such advances in the hope of discrediting at least some of the evidence that convinced a jury he was guilty of first-degree murder.

Recalling the impact of DNA on criminal justice, legal experts expect the case to be part of the leading edge in a surge of appeals by convicted arsonists, some behind bars since the 1970s. The new fire science is not as definitive as DNA testing, by any means, but it can raise significant doubts about past investigations.

One nationally known fire scientist, John J. Lentini, estimates that between 100 and 200 people may be "doing hard time" for arsons that weren't.

In 2005, according to the National Fire Protection Association, 31,500 structure fires were deemed intentional; they caused 315 deaths and $664 million in property damage.

Even with so many advances in fire investigation, worries persist that the new science is not practiced widely enough.

"There's still a lot of old wisdom that turns out not to be so wise being employed," said David L. Faigman, a professor at the University of California's Hastings College of the Law in San Francisco who has written extensively on the role of scientific research in legal decisions.

The Philadelphia assistant district attorney who prosecuted Dougherty expressed confidence last week that there had been no mistake about what happened on Carver Street, and that the death-row inmate was where he belonged.

"There's no question," John Doyle said, "and the jury so found."

However, three arson experts who reviewed the case for the defense found the original investigation to be so flawed that it was impossible to tell whether the fire was arson.

"There's no credible evidence that it was a set fire," said Lentini, one of the analysts and the president of a Florida company that conducts fire studies.

In Pennsylvania alone, at least a half-dozen other cases have been called into question, either in court filings or experts' studies.

Among the accused are a 71-year-old Korean immigrant serving a life sentence for the 1988 fire that killed his daughter during a Poconos vacation, and a former Dickinson College student in prison for life for a 1972 fire that led to the death of a woman involved with her boyfriend.

In New Jersey, Centurion Ministries - a Princeton group that works to free the unjustly imprisoned - has gotten inquiries from about 50 convicted arsonists whose cases could be affected by a scientific reexamination of the evidence, said Kate Germond, the assistant director.

Yet while new looks at old fires are generating legal challenges across the country, courts generally have been slow to overturn convictions even when science undermines investigators' initial findings. Although the rethinking of conventional arson wisdom began more than two decades ago, many judges and lawyers are only beginning to grasp its import.

"Courts are understandably cautious" about opening the floodgates to appeals, Faigman said. "But I do think they have to act for the greater needs of justice. I think it's going to take some time."

Still, there have been reversals.

In 2004, for instance, an inmate who spent 17 years on Texas' death row was released after prosecutors acknowledged that his conviction had been based on unreliable arson indicators, including burn marks. Ernest Willis collected nearly $430,000 for his time behind bars.

That same year in the same state, Cameron T. Willingham was executed for the 1991 fire that killed his three children. Afterward, a panel of experts commissioned by the Innocence Project - another group dedicated to exonerating the wrongly convicted - concluded that the fire was mislabeled as arson, again based on outmoded beliefs about burn patterns.

The people most at risk for being wrongly accused of arson are survivors of fires that kill close relatives, said John D. DeHaan, a California forensic scientist who was among the first to urge a more scientific approach.

"When there's a death involved, there's a lot of pressure on investigators to solve it," DeHaan said.

Consider what happened to Paul Camiolo.

He called 911 and yelled for his parents to get out when fire erupted in their home in Upper Moreland Township, Montgomery County, in September 1996. He tried to fight the flames, he said, but while he managed to rescue his sickly 57-year-old mother, his 81-year-old father perished inside. His mother died two months later of injuries suffered that morning.

For more than two years, police and fire officials debated whether the fire had been set, since traces of gasoline had been found in the hardwood flooring but not in the carpet. They opted for arson and murder, and in January 1999, Camiolo was charged.

He spent 10 months in the county jail before prosecutors dropped the charges. Camiolo's lawyers had shown that the gasoline was leaded, which meant it hadn't been commonly available for 15 years, and had been added to the hardwood floor's finish in the 1970s.

"Where do you go to get your name back?" asked Camiolo, now 41 and a computer software specialist living in Bucks County. "The mere accusation is so disgusting."

Steven Avato, a supervisory agent with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, investigated the Camiolo fire and contended from the start that it had been accidental - possibly ignited by a cigarette or a dropped match. Camiolo's mother was a smoker.

Others are probably in prison because of faulty arson findings, but "my gut tells me it would be a small number," Avato said in a recent interview.

"The question is, is even a small number acceptable?"

Shadows of doubt

Letters from inmates come in at a fairly steady pace to the office of Philadelphia's fire marshal, Robert J. Ruff.

He feels sympathy for those trying to get arson convictions overturned, he said, and sends them what information he can. "You never want to see an innocent person in prison, let alone on death row," said Ruff, who has been in the post six years.

As in any other type of criminal investigation, he said, science is having an undeniable impact on fire investigation. But he isn't ready to close the book on the practical knowledge that generations of fire marshals have gleaned from the ashes.

"I think the scientific method has been around - it just wasn't called the scientific method," Ruff said. "It was just years of experience."

The first shadows of doubt were cast on that anecdotal wisdom in the 1980s, when maverick investigators such as DeHaan began setting test fires and watching what happened, often in amazement.

Early on, he and some colleagues tested the long-accepted notion that a smoldering cigarette took two hours to ignite a sofa. They dropped a cigarette into a couch and went to lunch, figuring they had plenty of time. Instead, it took mere minutes - and they had to race back to douse the blaze.

This is how fire science slowly changed, one test at a time. For example:

Fires were always thought to burn upward. Now it is known that they can burn down from a ceiling as well.

Fires ignited by flammable liquids were believed to reach very high temperatures. Research has shown, though, that temperature is affected mostly by the ventilation.

Finely crackled glass was viewed as a sign of rapid heating caused by an accelerant. But scientists have found that the "crazed" surface results from the rapid cooling when water hits hot glass.

Burn patterns on a floor also were considered a reliable indicator of an accelerant. Today, investigators are careful not to read too much into those marks because they are common when a room is engulfed - even in an accidental blaze.

Fire science took a quantum leap into the 21st century when researchers began understanding a naturally occurring phenomenon known as "flashover."

As an interior fire burns, it spews heat and gases to the ceiling until the temperature there reaches about 1,100 degrees. At that critical moment, everything in the room suddenly ignites.

The effects of flashover can look like evidence of arson.

It can produce multiple burn patterns on the floor - much like those found on Carver Street.

'Folklore' on trial

Dan Dougherty was supposed to go to an Alcoholics Anonymous meeting on night of Aug. 23, 1985. Instead, he went to a neighborhood bar, where his girlfriend tracked him down.

Furious, she told him that they were through and that she wouldn't return to the two-story rowhouse they shared - even though her family owned it.

After their argument at the bar, Dougherty told police, he went home and heated up a roast beef sandwich on the range. He then got into another quarrel, this time with his ex-wife. Only then, he said, did he fall asleep on the sofa.

When he awoke, he said, he saw the curtains on fire.

Dougherty ran outside to get a neighbor's hose to drench himself and then raced to the backyard. He tried twice to climb a ladder but couldn't get inside.

Judy Sorling, a neighbor, heard Dougherty cry for help and watched as he turned on the hose. Only a trickle came out. He looked drunk, "staggering and slurring," she recalled in a recent interview.

Flames, meanwhile, engulfed the house.

"It was horrifying - something that stuck in my head for all this time," said Sorling, who described Dougherty as "distraught and heartbroken" as the fire was being extinguished.

A police officer at the scene reported that Dougherty stated, "My name's mud. I have to die for what I did."

From the start, Philadelphia Assistant Fire Marshal John J. Quinn suspected arson.

Now retired and living in Carbon County, Quinn declined to comment on the case last week. But in his 1985 report, he concluded that three fires had been set: in an overstuffed sofa, in a love seat, and under the dining room table. He wrote that his investigation had "disclosed a fast fire, indicative of direct application of an open flame."

Quinn's ruling was arson.

Nonetheless, 14 years passed before Dougherty was arrested.

He had remarried, had another child, gotten divorced, and, by 1999, was involved in a custody dispute. His second ex-wife told police that he had confessed to her that he set the fire.

At Dougherty's trial in October 2000, the prosecution contended that he had set the fire in an enraged act of vengeance against his girlfriend and his first ex-wife.

Two inmates testified that Dougherty had confessed to them. Yet the most pointed evidence was the expert testimony of John Quinn.

The jury took three hours to find him guilty and 3 1/2 hours to send him to death row.

In 2004, the Pennsylvania Supreme Court upheld the conviction and death sentence.

Now a new group of lawyers from the Center City firm Ballard Spahr Andrews & Ingersoll is representing Dougherty at the next level of his court fight. It will put him back before Judge Renee Cardwell Hughes, who presided over his trial.

In the November filing, the legal team, led by David S. Fryman, contends that Dougherty's original defense lawyer was ineffective for failing to call fire experts to challenge Quinn.

Dougherty's conviction rested on "nothing more than fire marshal folklore propped up by lying snitches," the petition asserts, and Quinn's conclusions were based "upon pure speculation amounting to old wives' tales passed down from fire marshal to fire marshal."

Arson scientists who reviewed the case said they could find no credible evidence that the fire had started in three places. Each raised the possibility that what had looked to Quinn like arson had merely been the result of flashover.

"Because the three alleged points of origin were all connected by contiguous areas of burning," Lentini reported, "it is impossible to state... to a reasonable degree of scientific certainty that there were three separate ignitions."

The District Attorney's Office is expected to file a response to the petition in March.

As the court battle proceeds, Dougherty, a hulking 6-foot-4, is well into his seventh year on death row.

When The Inquirer requested an interview with him at the State Correctional Institution in Greene County, south of Pittsburgh, his attorneys declined. Dougherty, they say, is a mix of emotions - anger, sadness, impatience.

"It has taken its toll," said Shannon D. Farmer, one of those representing him. "There's a growing sense of injustice and having been wronged by the system."

Dougherty has reestablished contact with a son by his second wife, who died last year. Fifteen-year-old Stephen Dougherty lives with a relative in California. He talks by phone often with his father, he said last week, adding that he hoped to visit his father in the summer.

Stephen said his father spent his time in his cell listening to radio music from the '60s and '70s - the Eagles' "Hotel California" is a favorite - and watching old westerns on TV.

"I'm hoping that he gets out," he said. "He's a good guy."