September 1, 2019 Vol. 2, No. 9

Sifting the Ashes

David Gavitt Case Revisited

Last September I reported on the case of David Lee Gavitt of Ionia Michigan, who was wrongly convicted for setting the 1985 fire that killed his wife and two children. He was in prison for almost 27 years. The story can be found here.

I am pleased to report that following the installation of a new Attorney General in Michigan, Mr. Gavitt has finally been granted compensation under a law that was passed in 2016, partly in response to Mr. Gavitt's wrongful conviction. The previous AG insisted on requiring Mr. Gavitt proving his innocence for a crime that never occurred, which is a tall order. The press release from the new Atty. Gen.'s office may be found here.

The following links may indicate why it why the State of Michigan has been taking a hard line. They had no idea how expensive wrongful convictions could be, even at the paltry sum of $50,000 per year, and had to add extra funding to the compensation fund this year.

Mr. Gavitt had to wait seven years after his exoneration and release in order to be compensated. At least his ordeal is finally over.

Cooperation Without Collusion.

Without the insurance industry, it is unlikely there would be much of a fire investigation profession. It seems that our society is unwilling to foot the bill for certain law enforcement expenses, so insurance companies frequently assist in the prosecution of cases of insurance fraud. There are arson immunity reporting statutes in all 50 states, which can shield insurance companies from wrongful prosecution lawsuits when they cooperate with law enforcement, but this has to be done carefully. The article that can be found at the link below.

describes a number of cases where the investigations went off the rails. (It may be necessary to copy and paste this link.) I worked on two of these cases, and reported on one, the case of Wisconsin versus Joseph Awe, in last July's newsletter.

The take away message is that we need to think carefully about what we're doing and try to avoid the "group think" that happens when people with perfectly good intentions make up their mind that arson has been committed and someone has to pay. This is particularly the case with fatal fires.

Besides the potential conflicts of interest between insurance companies and law enforcement agencies, there is also the potential conflict between a fire investigator fulfilling a science role and a fire investigator fulfilling a law enforcement role. I wrote an article entitled “Contextual Bias in Fire Investigations: Scientific vs. Investigative Data,” for The Brief, an ABA publication in 2015.

There are no easy answers to some of these questions, but we should confront them nonetheless and keep in mind the potential for conflicts and the appearances of conflicts.

Robert Yell Finally Exonerated.

Robert Yell of Kentucky was convicted of setting a fire that killed one of his children and injured the other, based on low burns and holes in the floor. No ignitable liquids were detected in his residence, but the trial court allowed for the admission of unconfirmed canine alerts. Amazingly, the Kentucky Supreme Court upheld this admission, despite being made aware of jurisprudence and other states that correctly stated that unconfirmed canine alerts should not be admitted as evidence at trial. They held that canine alerts were not science and therefore not subject to a Daubert challenge, despite the fact that the Kumho decision states that Daubert applies to all expert testimony, whether it is base on scientific, technical or other specialized knowledge.

In 2016, the Kentucky Department of Public advocacy filed a motion for new trial on the basis that evidence now known to be scientifically invalid was admitted. The original trial Judge held a two-day evidentiary hearing in which Greg Gorbett and Paul Bieber were expert witnesses called on Yell’s behalf. The judge had an interesting observation about fire investigation:

There may be something about the state of fire science and the nature of arson investigation that tends to permit errors. Placing the duties of investigation and prosecution upon the same persons expected to give an objective scientific analysis may be common practice in arson cases and this may be part of the problem. The more reliable expert testimony in criminal cases is presented by persons not directly involved in the general investigation and prosecution of the case. Ordinarily, police officers are not allowed to testify as to their personal conclusions on matters affecting the defendant's guilt. They are simply to present objective facts so that the jury can reach its own conclusions based on those facts. It is often said that to allow a witness to present evidence of the defendant's guilt in the form of a personal opinion invades the province of the jury. (It's almost like the judge had read my article on Contextual Bias in Fire Investigations, linked above.

The complete judgment, which covers many aspects of fire investigation is a very interesting read.

A story on the case was recently presented in the summer issue of the Florida Innocence Project’s newsletter. The story appears on the next page. Also, there was some discussion of this case on the Fire Investigation Phorum beginning on January 5, 2017. That discussion may be found here

Fixing Forensics

The sixth and final installment of Radley Balko's examination of forensic science appears here.

At the end of the article are links to the previous five installments. It makes for interesting reading.

After the Fire: Arson investigators battle cancer risks after years of duty

The linked article emphasizes the necessity of PPE and decontamination procedures. Having watched it up close and personal, I can testify that cancer is not a pleasant way to exit this plane of existence.

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