Flawed arson science was used in the Willingham case that landed a father on death row. Reviews of his case showed exactly where the mistakes were made and why. Despite that, the state of Texas executed Cameron Todd Willingham. Will the state of Pennsylvania make the same mistake?
Daniel Dougherty was found guilty of deliberately igniting fires in his home that killed his two sons, Danny(4) and Johnny(3) in 1985. Police arrested Dougherty 14 years later, when his estranged wife came forward and claimed he confessed. A jury found him guilty on capital murder charges in 2000. He is awaiting his execution.
On August 24, 1985, the night of the fire, Dougherty was supposed to be at an Alcoholics Anonymous meeting. He skipped the meeting and instead went to a bar, where he got into a verbal argument with his girlfriend at the time (she was not the mother of the two boys). He came home, made himself dinner and fell asleep on the sofa in his living room, according to his testimony at trial. He said he awoke to see the curtains in flames. His children were asleep upstairs.
He ran outside to get the neighbor’s garden hose, but the hose was too short. He tried to get water near the window of the house, but he was too late. Flames were already bursting from the house. The glass exploded, cut his arm and pushed him down. Next, he grabbed a wooden ladder. But the fire was too powerful. He testified it “blew him down.”
When firefighters arrived, Dougherty was frantic, screaming at police to save his children. His aggressive and erratic behavior worried police. Authorities shoved his face in the mud and he was taken away, court documents say. Dougherty testified he wanted to die at that moment.
Authorities sifted through the charred remnants of the home and determined the fire had been intentionally set. Police questioned Dougherty and his family members, but no arrest was made.
In the years after the fire that killed his two sons, family members said Daniel Dougherty changed. His addiction to alcohol intensified as he tried to cope with his loss. He eventually divorced his wife and remarried, then divorced again.
Dougherty received a surprise visit from police in 1999, about 14 years after the fire. His second wife, Adrienne Sussman, had reported to police that he confessed to using gasoline in the fire. Dougherty was arrested. Sussman’s claim should have been dismissed because no fire reports showed accelerants had been used, Dougherty’s attorneys argued. At the time Sussman went to police, she was engaged in a custody battle with Dougherty over their son Stephen, court documents say.
Prosecutors supported their case with the statements of two jail house informants who said Dougherty confessed to them in his cell. But Dougherty’s attorneys say the jail house informants are unreliable. They point to studies that show in-custody informant testimony is a leading cause of wrongful conviction in capital cases.
Dougherty’s first wife and the mother of the deceased children, Kathy Fox, is now remarried. She said she doesn’t believe he intentionally killed their children. She never testified in the original trial because Dougherty’s attorney didn’t ask her. “Knowing Daniel and his relationship with his children, I cannot believe he would have burned them to death,” she said in statement presented in Dougherty’s appeal.
Dougherty and his attorneys at Ballard Spahr in Philadelphia, Pennsylvania, are waiting on the Pennsylvania Supreme Court to decide whether to hear his petition for post-conviction relief. That petition was filed in 2006. The Pennsylvania Supreme Court however could take years to make a decision. If the Pennsylvania Supreme Court denies his post- conviction relief, his attorneys say they will have to go to federal court.
Intentional or Accidental?
Separately, the investigators combed through the reports, testimony, photographs and other evidence from the original fire scene. Contrary to the fire investigator’s original report in 1985, Lentini and Pisani argued there were no signs of arson in Dougherty’s home. Such expert testimony was never presented by Dougherty’s attorney in his 2000 trial.
In their report on the Dougherty case, Lentini and Pisani say they believe Philadelphia Assistant Fire Marshal John Quinn, who led the initial probe, relied on outdated arson investigation techniques. In his 1985 report, Quinn had determined three fires took place on the first floor of Dougherty’s brick home: one by the sofa, another by a love seat, and a third under the dining room table. Quinn concluded only a person could have set the fire in three separate places.
“There is no evidence to indicate it is arson,” said Lentini, who provided an expert report in Dougherty’s 2006 appeal and also reviewed the Cameron Todd Willingham case in 2004. “The only evidence he [Quinn] has is his three points of origin and those three points of origin are a figment of his imagination.”
Pisani and Lentini argue that the multiple burning spots were likely the result of a “flashover” — a naturally occurring phenomenon during a fire. In a flashover, the enclosed room can get very hot, reaching temperatures as high as 1,100 degrees Fahrenheit. The room eventually combusts, resulting in various burning points.
Flashover fires can be mistaken for arson because they leave the appearance of multiple points of ignition, they said. Lentini added Pennsylvania is “on their way to executing an innocent man.”
Pisani and Lentini also reported the origin of the fire could not be determined because of extensive damage to the room.
Compare Willingham with Dougherty
Modern forensic arson detection established that most mistakes centered on puddle configurations, pour patterns, burn trailer, and V-shaped burning marks.
V-shaped burn marks were taken as the sole indication for the point of origin of the fire. In the Dougherty case, the three points were by the sofa, another by a love seat, and a third one under the dining room table. However, modern arson forensics has established that V-shaped burn marks occur repeatedly during post flashover.
Flashover occurs when radiant heat causes fire in a room to be a room on fire; it can happen within minutes without liquid accelerant. Note that the original fire reports in the Dougherty case showed that no accelarent had been used. The then-held beliefs about flashover were wrong.
After everything in the Dougherty room ignited, post flashover occurred when the blaze went from a fuel-controlled fire to a ventilation-controlled fire.
Dougherty’s and Willigham’s case show exactly the same issues that plagued the Kenneth Richey case. Richey was on death row in Ohio. The prosecution based its case against Richey on transferred intent: Richey allegedly had the intention to kill his former girlfriend, Candy Barchet, and her new boyfriend, by setting fire in the apartment above theirs.
Common sense would question why Richey would choose the apartment above his ex-girlfriend’s since flames tend to go up instead of down. The apartment above Richey’s ex-girlfriend’s belonged to Hope Collins and her daughter Cynthia. Hope had left Cynthia alone that night to go to a party. The prosecution later claimed that she had asked Richey to babysit and that instead, he left Cynthia alone. The prosecution also admitted at trial that there was no evidence that Richey intended to kill Cynthia and that several times he tried to save her but, was held back by flames, smoke, and ultimately, by the fire department.
Initially the local Fire Chief and the Ohio State Fire Marshall ruled the fire accidental. The prosecution disagreed and hired its own experts. The authorities were convinced the fire was arson started by igniting paint thinner and gasoline on the carpet. Kenny’s trial attorneys failed to have their own forensic tests done. In 1996, arson experts Andrew T Armstrong and Richard L.P. Custer reexamined the pieces of evidence and concluded the original findings were based on unsound scientific principles that are not acceptable in the forensic science community for the investigation of arson-related fires today.
What is clear here is that forensic arson detection has evolved but we have not kept the same pace. Until 1992, some arson experts say, guidelines for determining arson were largely based on hand-me-down myths practiced by fire investigators with little formal training. In 1992, the National Fire Protection Association released its first arson guidebook based on years of studies and simulations. The guidelines, known as NFPA 921, were initially met with resistance from fire marshals and officers across the country, who believed arson investigations were an art rather than a science.
“It was gumshoe work, not really analysis and conducting studies,” said Gerald Hurst, an arson investigator with a Ph.D. in chemistry, who examined the arson findings in the Cameron Todd Willingham investigation from 1991. He concluded the arson science used in his case was “junk.”
In 2006, Hurst independently examined Daniel Dougherty’s case. Hurst, too, believed that the multiple burning points were the result of a flashover fire. The fire that killed three children in the Willingham case happened in 1991, one year before NFPA 921 was released. In February 2004, Willingham was executed. Later, three reviews of evidence by outside experts concluded the fire should not have been ruled arson. The reports stated a flashover was likely responsible for the fire at Willingham’s home.
Despite the reports, the re-investigations, and despite all the new guidelines, Doughterty might still face execution. Disproving arson is very challenging because the findings are not as clear-cut as DNA. Petitioners have the burden to prove the arson did not occur and that they were not involved. DNA is easier to accept since in most cases it settles whether evidence is or is not tied to a certain person. With arson, we have lingering doubts about alibis, accomplices, etc.
Let’s hope that the Pennsylvania Supreme Court does the right thing!