Sifting the Ashes
March 1, 2019, Vol. 2, No. 3
Expert Challenges Using Industry Standards
I just returned from the 71st annual meeting of the American Academy of Forensic Sciences (AAFS) in Baltimore, where I made two presentations. The first was about fires sucking the oxygen out of the room, a subject covered in some detail in the January edition of Sifting the Ashes.
The second presentation was entitled “Expert Challenges Using Industry Standards.” I used the example of NFPA 1033 Standard for Professional Qualifications for Fire Investigator to show how an investigator who lacked the knowledge base to answer simple questions about fire behavior could have his usefulness as a witness diminished using simple questions about fire dynamics and fire chemistry. It is difficult to argue that someone who cannot describe the combustion of methane to produce carbon dioxide and water meets the 1033 requirement to be knowledgeable about “fire chemistry.” It is equally difficult to argue that an investigator is a qualified expert if he does not know the definition of a watt, or cannot define radiant heat flux. In most cases such as this, it is not even necessary to file a motion to limit the “expert’s” testimony. Cases are simply dismissed or settled when sponsoring counsel recognizes a major deficiency in his or her case.
Fire investigation is not the only forensic science discipline where qualifications challenges have been successful. Forensic scientists working through OSAC, ASTM or the AAFS Standards Board (ASB) are all working on standards prescribing what an expert is supposed to know. Training guides exist for computer forensics, seized drug analysis and document examination. Training guides are in the works for hair microscopy, gunshot residue analysis, explosives analysis, and paint analysis. Other disciplines will surely follow. In addition to specifying minimum training requirements, the standards developers in a discipline often produce a standard terminology. These consensus documents provide a roadmap for any lawyer to challenge the qualifications of any adverse expert, regardless of discipline.
Qualifications challenges are the expected outcome of any standard that sets forth minimum requirements for practitioners. The professionals in each discipline come together and agree on the requisite knowledge to perform adequately in a given field. These standards act as both a sword and a shield. (Who remembers when NFPA 921 was described this way?)
Most forensic practitioners can claim expertise in one, or maybe a few disciplines. We expect our judges and litigators to be able to handle dozens of different disciplines over the course of their careers. The availability of training guides and terminologies makes this a far less daunting task. Experts in all disciplines, including fire investigation, should expect to see more qualifications challenges in the future.
In the September 2018 issue of Sifting the Ashes (Vol. 1, No. 3), I made reference to teaching an ATF advanced training course on subjects that were “anything but advanced.” Some readers may have thought that I was referring to the entire course, which was not the case. I was referring only to the subject matter of my portion of the course, which covered entry-level topics in fire chemistry and fire dynamics. It was not my intention to question the advanced level of the other eighty hours of the course, which I did not attend. Any investigator fortunate enough to be selected to attend this course should jump at the opportunity.
Come visit at the ITC
I will be attending the IAAI’s International Training Conference April 14-19 in Jacksonville, Florida. I will be attending as a sponsor and will have a booth where the Third Edition of Scientific Protocols for Fire Investigation will be available. The Exhibitor room will be open from 7 AM to 5 PM on Wednesday and 7 AM to 1 PM on Thursday. This looks like it will be a very informative program and as often happens, it will sometimes be difficult to choose which class to attend.
You can find all the details at www.firearson.com. Early Bird rates are available through March 14.
Case Study of the Month
Indiana vs. Fred Fegley
On April 15, 2015, Fred Fegley was living in his mother's basement. Fegley, who had mental health issues, was 70 and his mother was 92.
At 4:30 AM, Fegley reported that he woke up after smelling a peculiar odor he got out of bed, and opened his bedroom door, and observed “very heavy smoke.” He tried to get to his mother’s bedroom on the second floor, but was turned back by heat and flames in the stairway between the basement and the first floor. He exited the home via the walkout basement door, and ran to a neighbor’s home to call for help.
Before his ordeal was over, Fegley would find himself arrested and charged with setting the fire that killed his mother. It was only after his attorney, Robert Harper, obtained the funds to hire his own expert that the complexion of the case began to change. Mr. Harper retained Dennis Smith of Premier Fire Consulting Services in August 2017. I was later retained to review the chemical analysis of fire debris.
Police Officer Kevin Hughes was the first responder on the scene, and he reported that he saw heavy smoke on the main floor and fire through the basement window. He did not report seeing fire in the window just above. The corner of the home where the basement window was located is shown in Figure 1.
Figure 1. Southeast corner of the home. The first responder saw flames in the basement, but did not report seeing flames in the window directly above it.
The fire was investigated by a State Fire Marshal Assistant Chief, who was on the scene early and heard about Mr. Fegley’s description of events. He opined to the local detective handling the case, that there were no flames or smoke in the stairway that would have prevented Fegley from going up the stairs. This is at odds with the photographic evidence depicted in Figure 2 showing fire overhead part way up the stairs to the living room. There is no time stamp on this fire damage, but it definitely shows that the stairs were impassible at some point.
The SFM called for an accelerant detection canine, which alerted in several places. Before samples had been analyzed from areas where the canine alerted, the SFM apparently decided that each of these alerts represented an origin, even though careful examination of his photographs later revealed that all of the burning had been in one contiguous fire area (see NFPA 921-17, §3.3.68 “fire area”).
Figure 2. Fire damage above the stairs from the basement to the living room.
The SFM’s first area of origin was identified as being in a storage room at the southeast corner of the basement in the general vicinity of the window where some chairs had been stacked. This area is shown in Figure 3. The chair where the canine had alerted had been covered with drop down fire debris, but was largely undamaged.
Figure 3. Stacked chairs beneath the basement window, identified as area of origin #1.
Directly above this area, two of the floor joists had been consumed, and a hole had been burned into the living room, as shown in Figure 4.
Figure 4. Consumed floor joists and hole burned from the basement into the
Figure 5. Mosaic view of the living room showing two paths of fire travel.
A mosaic view of the living room, seen in Figure 5, shows that there was more than one path of travel from the basement into the living room. The fire clearly moved up the stairway at the left side of this photograph and the hole in the floor was located below the window in the center. The overturned furniture visible in Figure 6 was not reconstructed until the insurance company investigator got on the scene.
Figure 6. Location of the hole burned in the living room floor.
The explanation for the burning of the hole in the floor can be attributed to ventilation from the basement window, which at some point acted as an intake. The same ventilation-enhanced burning occurred once the fire got into the living room. Figure 7 shows an area of burned planks on the cathedral ceiling directly above the window at the southeast corner.
Figure 7. Ventilation-enhanced burning on the cathedral ceiling above the southeast living room window.
A pre-fire view of the living room showing both staircases appears in Figure 8.
Figure 8. Pre-fire view of the living room.
Despite the existence of two paths of fire travel into the living room from the basement, and fire effects and patterns in the room consistent with full-room involvement, the SFM decided that there was yet another origin, this one in the living room at the left side of the couch shown in Figures 8 and 9. There was not any unique fire damage that would lead that would ordinarily lead to such a conclusion, especially given evidence of post-flashover fire conditions, but as is shown in Figure 10, the canine alerted to the left side of the sofa as indicated by the white golf tee. A sample collected from this area was negative when tested at the laboratory, as was the sample collected downstairs next to the stacked chairs, which also had a white tee. It appears that the SFM equated these unconfirmed canine alerts with areas of origin.
A closer examination of the materials in the couch revealed that the cushions were largely intact, although the top surface was charred. Further, at the left rear corner of the sofa, there was a potted plant that had presumably fallen from above. This odd positioning of the plant was apparently not investigated. It was certainly not commented upon in the SFM's report.
Figure 9. View to northeast corner in living room showing the sofa along the north wall and the windows and fireplace on the east elevation.
The initial SFM who had conducted the scene examination abruptly resigned and a second SFM was assigned to perform a “technical review” of the original SFM’s work. Although the second Fire Marshal only perceived two points of origin, he still called the fire intentionally set. This officer stated that there was a large area of origin both inside and outside the southeast basement window. How that could have been arranged as a matter of some conjecture.
Figure 10. Alleged origin at the left side of the sofa. Note the white golf tee. The remains of a potted plant were found in the corner of the sofa under the location indicated by the golf tee.
The original SFM had determined that in addition to the origin below the basement window, there was also one outside the basement window on the ground. Coincidentally, the canine had alerted in this area as well. A partially burned sample of the window frame shown in Figure 11 was submitted to the laboratory and tested positive for a trace amount of medium petroleum distillate (MPD).
It was after the laboratory findings were made known to the defendant that Dennis Smith, a private investigator who had been retained by the court on behalf of the defendant, recommended that I be retained to review the chemistry. While I was able to agree that there was MPD in the sample of wood collected from the window frame, the amount present was so small that it could easily have been residual solvent from when the window was painted. No comparison sample was available.
Figure 11. Southeast basement window frame. This wood supposedly exhibited a flammable liquid pour pattern.
Only one other sample tested positive, and it also was identified as containing MPD. Not understanding that medium petroleum distillates are very common, and not understanding that it is sometimes possible to determine if two samples had a common source, the authorities charged Mr. Fegley with arson and murder.
The second positive sample was a can containing Mr. Fegley's clothing, which consisted of a pair of pajama pants and a Chicago Cubs T-shirt. The laboratory report stated that the exhibit contained pajama pants and a Chicago Cubs T-shirt, but in a police report, the arresting officer chose to specify the presence of MPD on the pajama bottoms. Because the two samples, the T-shirt and the bottoms, were submitted in the same can, they were analyzed together. It is known that appliqués such as the one on the T-shirt can contain organic solvents such as MPD's. Further it is not possible to specify the location of the MPD in a case such as this. The T-shirt is shown in Figure 12.
By examining the range of carbon numbers in the MPD's, it was possible to distinguish them. While both samples met the criteria for identifying MPD, the MPD from the T-shirt exhibited a different mixture of compounds than the MPD from the window frame. Although comparisons of ignitable liquid residues are outside the scope of the generally accepted ASTM fire debris test method (ASTM E1618), comparisons are nevertheless possible. The residue from the wood sample (#4) contained compounds in the range of C9 to C15, while the residue from the T-shirt, which was much more abundant, had no detectable compounds above C12.
I was able to conclude that the two positive samples did not contain MPD's from the same source, and that in the absence of any comparison samples, the MPD findings were meaningless.
Figure 12. Photograph of the T-shirt worn by Mr. Fegley from the laboratory file. (Poor resolution is due to the fact that only a pdf was available.)
This information, combined with that provided by Dennis Smith who reviewed the origin and cause analysis, persuaded Gary Germann, the newly elected Prosecutor in Porter County to dismiss the charges. Mr. Fegley was freed from custody after almost 3 years on January 4, 2019. He had been arrested on January 6, 2016.
Although the horror of a wrongful conviction was avoided, this case is illustrative of several that I have reviewed where fire investigators claim to be somehow able to discern multiple origins, even when it can be shown that all of the fire damage constituted one contiguous fire area, and could be accounted for in terms of a single point of origin.
A Chicago Tribune story on the release of Mr. Fegley can be found here: https://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-fegely-charge-dismissed-st-0105-story.html (If you run into a pay wall, contact me for a pdf).
Mr. Germann credited the work of Harper, Fegely’s public defender, for the time he spent on the case, as well as the court’s authorization to provide “a substantial amount of money” for Harper to hire the experts necessary for Fegely’s defense.
“Without the money and the experts, I’m satisfied if this case had gone to trial, there was a real risk the defendant would have been convicted in a case where he was actually innocent,” Germann said, adding the case represented a great personal victory for Fegely and the county’s criminal justice system.
“My hope is the public will see this as a victory for them as well, because I want this case to serve as notice to everyone here that beginning Jan. 1, the Porter County Prosecutor’s Office will no longer be prosecuting the innocent,” he said.
This case once again shows the necessity for defense lawyers to have access to funds for experts in contested arson cases. Without that access, they will not be able to offer the effective assistance of counsel guaranteed by the Sixth Amendment.
Thanks to my friend Denny Smith (www.premierfireconsulting.com) for the referral, and for his help in preparing this case study.
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