TAMMY MARQUARDT CASE; PART 13; ONTARIO COURT OF APPEAL TO TAKE A SECOND LOOK AT HER CASE; RELEASED ON BAIL FROM PRISON LAST MONTH: TORONTO STAR

"DR. SIMON AVIS, NEWFOUNDLAND'S CHIEF MEDICAL EXAMINER AND ONE OF THE SIX EXPERTS WHO RECENTLY REJECTED SMITH'S FINDINGS, SAID KENNETH, WHO HAD EPILEPSY, COULD HAVE DIED FROM A SEIZURE. MARQUARDT ALSO HAS A HISTORY OF SEIZURES."

LEGAL AFFAIRS REPORTER TRACEY TYLER: TORONTO STAR;

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Reporter Tracey Tyler's report on the appeal court decision ran under the heading, "New hearing for mother convicted in son's death."

"Nearly 14 years after the words of a disgraced pathologist put her behind bars for the death of her infant son, Tammy Marquardt has won a new hearing," Tyler's story began;

"The Supreme Court of Canada has ordered the Ontario Court of Appeal to take a second look at the Toronto woman's case in light of evidence from six forensic experts who say Dr. Charles Smith's conclusions were wrong," the story continued;

""The case is remanded to the Court of Appeal for Ontario for consideration of fresh evidence and whether the applicant's conviction constitutes a miscarriage of justice," the court said in announcing its decision today.

Marquardt, 37, was released on bail from a federal prison last month and is living at a Toronto drug treatment centre.

She was convicted on Oct. 24, 1995 of second-degree murder in connection with the death of her son, Kenneth Wynne, 2 1/2.

Following her arrest, Marquardt had another son, Keith, now 14. Another son, Eric, now 12, was born after she went to prison.

Both were seized by child welfare officials and put up for adoption.

Smith maintained Kenneth had been smothered or strangled, but Marquardt has consistently told a different story. She said she awoke from a nap on Oct. 9, 1993 to find him tangled in bed sheets. He later went limp.

Dr. Simon Avis, Newfoundland's chief medical examiner and one of the six experts who recently rejected Smith's findings, said Kenneth, who had epilepsy, could have died from a seizure. Marquardt also has a history of seizures."

Harold Levy...hlevy15@gmail.com'

BREAKING NEWS: TAMMY MARQUARDT CASE: (PART 12): ONTARIO COURT OF APPEAL TAKES ON HER CASE; CANADIAN PRESS REPORTS;

"TODAY, THE SUPREME COURT OF CANADA SENT THE CASE TO ONTARIO'S TOP COURT TO WEIGH FRESH EVIDENCE AND WHETHER THE APPLICANT'S CONVICTION CONSTITUTES A MISCARRIAGE OF JUSTICE."

THE CANADIAN PRESS;

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The CP story ran earlier this morning under the heading "Appeal granted to final parent imprisoned because of Charles Smith's testimony."

"The Ontario Court of Appeal will hear the case of the last known parent who remained behind bars based on the testimony of disgraced pathologist Dr. Charles Smith," the story begins;

"Tammy Marquardt was convicted of second-degree murder in the death of her son Kenneth and was handed a life sentence in 1995," the story continues;

"Today, the Supreme Court of Canada sent the case to Ontario's top court to weigh fresh evidence and whether the applicant's conviction constitutes a miscarriage of justice.

Marquardt, who was granted bail last month, said she found the boy tangled in his bedsheets, but Smith said he was smothered or strangled.

Last October, the Goudge inquiry into Ontario's pediatric pathology system criticized Smith for `irresponsible' testimony in a series of child death cases.

Marquardt's lawyers, who requested the case be heard by the Ontario Appeal Court, have said there is fresh evidence which `entirely discredits' Smith's 1995 testimony."

Harold Levy...hlevy15@gmail.com

NATIONAL ACADEMY OF SCIENCES REPORT ON FORENSIC SCIENCES IN U.S. LABS; DISTURBING DEFICIENCIES REPORTED; A WEAPON AGAINST WRONGFUL CONVICTIONS?

"EXPERTS ESTIMATE THAT ONLY 5-10 PERCENT OF ALL CRIMINAL CASES INVOLVE BIOLOGICAL EVIDENCE THAT COULD BE SUBJECTED TO DNA TESTING," THE INNOCENCE PROJECT NOTES ON ITS WEB SITE. "IN THE OTHER 90-95 PERCENT OF CRIMES, DNA TESTING IS NOT AN OPTION — SO THE CRIMINAL JUSTICE SYSTEM RELIES ON OTHER KINDS OF EVIDENCE, INCLUDING FORENSIC DISCIPLINES THAT MAY NOT BE SCIENTIFICALLY SOUND OR PROPERLY CONDUCTED."

JOURNAL NEWS COLUMNIST NOREEN O'DONNELL;

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The disturbing conclusions of the recently released National Academy of Sciences Report will hardly surprise readers of the Charles Smith Blog.

But they may cause American legislators and judges to wake up to the huge deficiencies in the American criminal justice system - and any other criminal justice system - posed by faulty forensic science and inadequate crime labs.

One can only hope that the Academy's recommendations will be heeded - and that the Report will help prevent future miscarriages of justice.

The Report is well covered by Journal News columnist Noreen O'Donnell, in a column entitled, "Most forensic fields are inexact at best, report says," published on February 23, 2009

"That the Innocence Project has helped to exonerate 232 people through DNA testing was already proof that the criminal justice system didn't always deliver justice," the column begins;

"Now a new federal report finds serious deficiencies in the forensic science practiced in crime labs across the country," it continues;

"The report, produced by the National Academy of Sciences and released last week, concluded that among the methods used, only DNA stood up to strict scrutiny. But what about fingerprint analysis, or ballistics or the study of bite marks or hair? None measured up, no matter what the drama on the CBS television show "CSI: Crime Scene Investigation."

"Nuclear DNA analysis has been subjected to more scrutiny than any other forensic discipline, with extensive experimentation and validation performed prior to its use in investigations," said a statement that accompanied the report. "This is not the case with most other forensic science methods, which have evolved piecemeal in response to law enforcement needs, and which have never been strongly supported by federal research or closely scrutinized by the scientific community."

The report found:

- While there is evidence that fingerprints are unique to each person, that uniqueness does not ensure two prints will not be confused.

- The accuracy of shoeprints or tire track analysis is impossible to assess.

- There is no evidence that microscopic hair analysis can match hair with a specific person — though it might rule in or rule out groups of people.

- Bite-mark matches offer no scientific studies for support.

- The knowledge base for firearms analysis is fairly limited.

The Innocence Project already demonstrated that unvalidated or improper forensic science contributed to wrongful convictions in more than half of the exonerations it has won through DNA testing.

Among those imprisoned as a result of faulty science was Steven Barnes, the most recent case in New York and about whom I wrote earlier this month. The Innocence Project notes that an analyst testified that soil on Barnes' truck tires was similar to soil from the upstate crime scene, and that a mark on his truck was similar to a pattern of a brand of bluejeans the victim was wearing.

Barnes spent nearly 20 years in prison for a killing he did not commit.

Here's another example: Roy Brown, who went to prison for 15 years for strangling and stabbing an upstate social services worker. An expert testified that four bite marks on the victim's body were consistent with his mouth. But the bite marks showed four incisor teeth, while Brown had only two.

Or Dennis Halstead, John Restivo and John Kogut, improperly convicted of the rape and murder of a 16-year-old girl on Long Island. An analyst testified that hairs found in Restivo's van could have come from the victim.

"Experts estimate that only 5-10 percent of all criminal cases involve biological evidence that could be subjected to DNA testing," the Innocence Project notes on its Web site. "In the other 90-95 percent of crimes, DNA testing is not an option — so the criminal justice system relies on other kinds of evidence, including forensic disciplines that may not be scientifically sound or properly conducted."

Beyond the poor science, the report also found a backlog of 359,000 cases. That's up 24 percent in the years between 2002 and 2005.

The solution? According to the report, a new "National Institute of Forensic Science," which would be independent of law enforcement officials. The new federal agency would regulate crime labs and standardize techniques.

The Justice Department and Congress are now studying the findings. They could be a step toward making sure justice is delivered.

The Innocence Project certainly thinks so.

"The safeguards recommended in the report would significantly improve public safety and prevent wrongful convictions," it says."

SUPERB PROGRAM ON EXPERT FORENSIC EVIDENCE AND WRONGFUL CONVICTIONS TO BE HELD IN TORONTO ON MAY 9; MAJOR EVENT; HEARTILY RECOMMENDED BY THIS BLOG;

The Osgoode Hall Law School has set up a superb program on expert forensic evidence in criminal proceedings and wrongful convictions to run in Toronto on Saturday May 9, 2009;

I plan to be there - and I enthusiastically recommend to anyone who wants to come to grip with wrongful convictions caused by flawed pathology and and flawed forensic "experts" such as Dr. Charles Randal Smith, a pediatric pathologist who is the inspiration of this Blog;

The program will provide an opportunity to hear many enlightened speakers including Justice Steven Goudge, who conducted a deeply probing public inquire into pediatric forensic pathology in Ontario - and the legendary Peter Neufeld, Co-Founder and Co-Director, of the Innocence Project;

Here are the basic details:

Title: Expert Forensic Evidence in Criminal Proceedings: Avoiding Wrongful Convictions;

Date: Saturday, May 09, 2009, from 9:00 AM to 5:00 PM

Sponsors: The Centre for Forensic Science and Medicine, and Osgoode Hall Professional Development;

Location - MaRS Centre, 101 College Street, Toronto, Ontario

Opportuntiy provided: To join a distinguished faculty of senior judges, Crowns, defence lawyers and forensic experts from a range of disciplines to expore:

Main topics to be explored:

0: The Steven Truscott Case and beyond: Lessons learned;
0:The importance of language in communicating and eliciting expert opinions;
0:Threshold reliability and admissibility of expert evidence;
0: After admissibility? Forensic scientific evidence in the Criminal trial and appeal;
0: Forensic evidence surrounding the living child;
0: Building an evidence-based report accounting for confirmation bias;
0:Keynote Speaker: The Honourable Justice Stephen Goudge, Court of Appeal for Ontario, Commissioner of the Inquiry into Pediatric Forensic Pathology in Ontario;
0: Special Guest Speaker: Peter Neufeld, Co-Founder and Co-Director, Innocence Project, Benjamin Cardozo School of Law, Yeshiva University, New York City;

Registration Fee: $400.00 plus 5% GST;

Information: To inquire about group discounts, financial aid and CLE credits.
For group discount information, visit www.osgoodepd.ca;

To register: www.osgoodepd.ca, call: 416.597.9725 or e-mail: opd-registration@osgoode.yorku.ca;

More information: www.forensics.utoronto.ca/events/special.htm;

I hope to see you there!

Harold Levy...hlevy15@gmail.com;

UP-DATE: SOUTH AUSTRALIA; HENRY KEOGH'S COMPLAINT AGAINST DR. COLIN MANOCK; HEARING BEGINS MONDAY MAY 4;

I am greatful to Professor Bob Moles for advising this Blog that the proceedings in this matter are set down for hearing in the Professional Conduct Tribunal to commence next Monday - 4 May 2009.

Professor Moles advises that it is now 7 years since Mr. Keogh first lodged his Complaint in relation to this matter with the Medical Board.

Professor Moles will be putting up a daily report on the progress of the hearing which can be accessed via:

http://netk.net.au/whatsnew.asp

and:

http://netk.net.au/ManockHome.asp

By way of brief background: Dr Manock is a forensic pathologist who gave evidence for the prosecution in the trial and retrial of Henry Vincent Keogh for the murder of his fiancé Anna-Jane Cheney in 1994. Mr Keogh was convicted in 1995 and sentenced to life imprisonment, with a 25-year non-parole period.

Harold Levy...hlevy15@gmail.com;

UP-DATE: WILLINGHAM CASE; PART 9; BURN PATTERNS, SLOPPY FIRE SCIENCE, CAMERON TODD WILLINGHAM AND TOO MANY OTHER CASES; DAVE MANN; THE TEXAS OBSERVER;

"IN THE FACE OF SUCH CHALLENGES, FIRE INVESTIGATORS FOR DECADES RELIED ON A SERIES OF ASSUMPTIONS ABOUT HOW FIRE BEHAVES TO DETERMINE WHICH BLAZES WERE SET INTENTIONALLY. THEIR METHODS WEREN’T SCIENTIFIC. YET THEIR EVIDENCE HAS SENT TENS OF THOUSANDS OF PEOPLE TO PRISON FOR ARSON. MUCH OF IT WAS WRONG.

IN THE PAST 20 YEARS, EXPERIMENTS HAVE DISPROVED MANY OF THE OLD ASSUMPTIONS—THAT ARSON FIRES BURN HOTTER AND FASTER, THAT A CERTAIN BURN PATTERN ON THE FLOOR MEANS GASOLINE WAS USED—AND EXONERATED DOZENS OF PEOPLE WRONGLY CONVICTED. FOR YEARS, INVESTIGATORS THOUGHT “CRAZED GLASS”—IN WHICH WEBLIKE CRACKS FORM ON A WINDOW—WAS PROOF THAT A FIRE HAD BURNED ESPECIALLY HOT AND FAST, INDICATING THE PRESENCE OF AN ACCELERANT THAT AN ARSONIST HAD USED TO IGNITE THE BLAZE. RECENT EXPERIMENTS HAVE SHOWN THAT ACCIDENTAL FIRES CAN BURN JUST AS HOT AS (OR HOTTER THAN) ARSON FIRES. AND RESEARCHERS HAVE DISCOVERED THAT CRAZED GLASS ACTUALLY RESULTS WHEN WATER FROM FIRE HOSES HITS A HOT WINDOW."

REPORTER DAVE MANN: THE TEXAS OBSERVER: PHOTO: CAMERON TODD WILLINGHAM;

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Reporter Dave Mann deserves kudus for his informative story headed "Burn Patterns" which ran in the Texas Observer on April 3, 2009;

A sub-heading indicates that: "Curtis Severns is serving 27 years for an arson he almost certainly didn't commit. Sloppy fire science put him there."

"It was just past 1 a.m. on a Saturday night when the phone woke Curtis Severns," the story begins;

"The security company was calling to say his gun shop was on fire," it continues;

"He roused himself, left his wife, Sue, and their newborn, and began the hour-long drive from the North Texas town of Sherman to his store in Plano. That was Aug. 21, 2004. His life hasn’t been the same since.

For nearly three years, Severns has been in federal prison. Convicted of intentionally starting the fire in his gun shop, he has 25 more years on his sentence. Severns has maintained his innocence all along. As in many arson cases, he was convicted almost exclusively by the testimony of fire investigators who relied on assumptions that some of the leading arson experts in the country now say are false. In fact, new evidence and an Observer investigation reveal that Severns remains in federal prison in Beaumont for a crime he likely didn’t commit.

By the time Severns reached his gun shop that night, the Plano Fire Department had extinguished the flames. But his business was clearly ruined. A local fire investigator immediately suspected arson. He believed the burn patterns indicated the fire had started in three different places. What investigators call “multiple points of origin” usually indicates arson because accidental fires almost never begin in several places at once. The locals called in agents from the U.S. Bureau of Alcohol Tobacco and Firearms, who had jurisdiction because the fire had ignited in a gun shop. Federal investigators began to build an arson case against Severns.

There wasn’t much to go on. No witnesses saw him set the fire. There were no traces of gasoline or other accelerants used to start the blaze. And there was little motive for Severns to burn down his own business and its inventory. Prosecutors would later claim he did it for the insurance money. That seems odd. Severns’ family wasn’t struggling financially; his wife earned a six-figure salary. Moreover, five months before the fire, Severns had reduced his insurance policy limit to far less than the shop was worth. If he’d done it for the insurance, he would have lost money on the deal.

Two of the leading arson experts in the country believe the fire at Lone Star Guns was accidental. They say it had a single point of origin, sparked by a frayed electric cord found at the scene, and was spread by a case of aerosol cans sitting nearby. The cans were filled with highly flammable gun cleaner. When aerosol cans explode, they can act like blowtorches, spewing flaming liquid all over. These experts say the ATF agents, using sloppy methods, mistook an aerosol-can explosion for a three-point-of-origin fire.

“Spray cans can create the illusion of multiple origins,” says Gerald Hurst, an arson and explosives expert who lives in Austin. “Arson investigation always has one basic tenet. You have to eliminate all reasonable natural and accidental causes of the origins of the fire.” In Severns’ case, “There is no way in hell you can eliminate those spray cans.”

Florida-based John Lentini, one of the best-known fire investigators in the nation, agrees. “What we had was a bunch of guys who claim to be expert fire investigators telling a jury that they can see multiple origins,” Lentini says. “Quite frankly, I couldn’t see that.” The investigation of the Lone Star Guns fire was typical, he says. “It’s an appealing notion that you can calculate multiple points of origin. This school of thought hasn’t been validated, and it leads to false convictions.”

Over the past 15 years, many unscientific assumptions about how fire spreads—inherited knowledge passed from one generation of investigators to another—have turned out to be wrong. Using newer methods, Hurst has helped exonerate dozens of people wrongly convicted of arson, including two infamous cases in Texas, and has helped save several defendants from the death chamber. He believes Severns was railroaded. As Hurst put it at Severns’ 2006 trial in Sherman when asked how the fire spread, “If that’s not a spray can, I’m a monkey’s uncle.”

Severns’ trial became a debate about aerosol cans. Prosecutors contended that the cans could not have spread the fire. Their two star witnesses were the lead ATF investigator and a prominent arson expert who works closely with the ATF and frequently testifies for prosecutors. They argued that aerosol cans explode in a brief flash, that the contents inside burn off quickly and usually don’t spread fire. The jury believed them.

But new video evidence has surfaced that contradicts the key testimony that convicted Severns and shows the fire was likely accidental. In 2007, someone inside the ATF leaked one of the agency’s training videos to Lentini. In the video, shot in 1994, ATF agents intentionally ignite aerosol cans to see how they’ll react in a fire. When the cans explode, they can clearly be seen bouncing around the room, tossing flaming liquid and starting fires several feet away—just as Hurst and Lentini contend.

The fire expert who provided key testimony for the prosecution, John DeHaan, recently admitted, in an interview with the Observer, that it’s “theoretically possible” that the fire was accidental.

ATF investigators in Severns’ case knew about the video during his 2006 trial; in fact, the supervising ATF agent on the case helped run the aerosol-can experiment. The ATF failed to inform Severns’ defense team. Yet in February 2009, the 5th Circuit Court of Appeals rejected Severns’ bid for a new trial based on the ATF video. His lawyers have filed more appeals.

Perhaps no one was more surprised by the verdict than Severns. He had turned down a five-year plea offer before the trial. When his lawyer explained that the plea could have him home in three years rather than 30, Severns said he wouldn’t plead guilty to something he didn’t do.

When the judge read the guilty verdict, Severns collapsed. He fell to the floor behind the defense table and began to sob. His lawyer had never seen anything like it. “I didn’t do this,” Severns said. After his lawyer coaxed him to his feet, Severns yelled at the prosecutors, “How could you do this?” A short time later, U.S. marshals handcuffed him and led him away to nearly three decades in federal prison.

After the sentencing, on June 8, 2007, the Dallas Morning News published a 300-word story deep inside the paper about a man from Sherman who had been convicted of burning his gun shop. “Fire investigators knew the fire was not accidental, because it was started in three different places,” the newspaper reported. Until now, that is the only news report ever produced about Curtis Ray Severns.

The Gun Shop
Severns, now 42, was a handyman by trade. His wife, Sue, whom he married in 2003, was the family moneymaker. A computer programmer, she had worked in Silicon Valley for Hewlett-Packard Co. At the time of the fire, she was earning six figures from Perot Systems Corp.

In early 2004, the Severns bought Lone Star Guns in Plano. It was Curtis’ idea. He often listened to conservative talk radio and had heard a lot of discussion about the possible lifting of the Brady bill’s ban on assault weapons later that year. Curtis figured if the ban ended, there would be money to be made on assault weapons. Lone Star Guns, a 30-year-old business, cost $80,000. The money was Sue’s, the first of several loans she made to her husband to build the business.

Curtis isn’t a gunsmith, but he’s good with his hands. He quickly set about remodeling the store. He hired more staff and bought out a local competitor. The Severns hoped that Sue’s son from a previous marriage—who has a learning disability but, like Curtis, is good with his hands—would one day take over the shop.

Court records show that Lone Star Guns wasn’t profitable in its first seven months under the Severns’ ownership. But business was steady, and sales exceeded those from a year earlier under the previous owner. “We were investing into the business, so obviously more money was going out than coming in,” Curtis Severns said in response to written questions from the Observer. “But it was where we expected to be at that time. We were expecting to do quite well at the end of the year.”

(The Observer was unable to interview Severns in person for this story. We submitted the necessary media request forms and a list of questions we planned to ask. Severns granted permission for the interview. His attorney, Charles van Cleef, said that prison officials told Severns the scheduled date of the interview. But Bureau of Prisons regional officials and Jody Upton, warden of the medium-security prison in Beaumont where Severns is incarcerated, denied final approval. In a letter to the Observer, Upton wrote that an interview wasn’t possible due to “safety and security concerns.” A spokeswoman at the Beaumont facility refused to elaborate. A Bureau of Prisons spokesperson in Washington, D.C., said each facility has sole authority to turn away visitors for safety and security reasons. As a result, all comments by Severns in this story, unless otherwise noted, are taken from a brief phone interview and from responses to written questions submitted through van Cleef.)

At the time of the fire, the Severns weren’t struggling financially. Sue had more than $100,000 in savings. They were paying their home mortgage and the gun-store note on time, according to court records. Curtis had spent the spring and summer building the store’s inventory ahead of the fall hunting season, always prime time for gun sellers, and for the expected end of the assault weapons ban in September. They were hoping for a profitable fall.

On Aug. 21, Curtis Severns arrived at Lone Star Guns around noon. It wasn’t unusual for him to work weekends. The store closed at 6 p.m. He told the other employees he would lock up. This wasn’t out of the ordinary, either; Severns’ employees would later testify that he frequently worked late hours. On this night, he went through the week’s receipts and prepared to sell items at a shooting competition the next day. At about 10:30 p.m., he locked the store, set the alarm, and set off for home. In the summer, he later testified, he used desk fans to cool the shop when he was there alone, instead of air conditioning, to save money. When he left that night, he later testified, he had forgotten to turn off one of the fans. Twenty-three minutes later, the smoke alarm sounded.

The short time between his departure and the fire alarm would later cast suspicion on Severns. He was the last person inside the building that night. If it was arson, there’s no question who did it. But it’s entirely possible that an accidental blaze started during those 23 minutes. As Lentini, the Florida fire expert, puts it, “His problem was he left the thing too soon before the fire was detected. So they said, ‘Oh, he must have set it.’”

The Fire
The fire itself was relatively minor. Flames engulfed two gunsmith workbenches and an area of bookcases in the back room of Lone Star Guns, churning through the many flammable materials in the shop. Heat and smoke drifted up through the roof, and eventually the ceiling collapsed. The flames were out roughly 30 minutes after firefighters arrived. The store’s workroom sustained serious damage in a 12-by-12-foot area, but the front of the store, the customer area, was mostly untouched. Water from the fire hoses ruined all the guns in the place, but the structure remained mostly intact. A few neighboring businesses suffered smoke damage. No one was injured. The people most affected, of course, were the Severns, who had seen their hard work and inventory destroyed.

The next day, investigators picked through the smoldering remnants of the gun shop’s back room with shovels and flashlights. Before the ATF investigators even showed up, firemen and store employees had moved items around and begun to clean up.

“Part of the problem was that the scene wasn’t very well preserved,” says John DeHaan, a former ATF investigator who was the prosecution’s star witness in the Severns trial. DeHaan wasn’t at the scene, but like Hurst and Lentini, based his testimony on arson reports and photos from the store, which is common practice. “The cause-and-origin person from the ATF didn’t get there until after the scene had been disturbed. So we had limited quality of information.”

Special Agent Steve Steele was the ATF’s lead investigator on the case. After a quick pass through the scene—he spent 15 to 20 minutes conducting his examination—Steele concurred with local investigators’ assessment: There were three main areas of burning. There was no obvious burn pattern across the floor connecting these areas. It looked like multiple origins, the holy grail of fire investigation. But Lone Star Guns wasn’t the typical multiple-origin scene. “Usually what we mean by multiple origins is, you go to a house, and there’s a fire in the bedroom in the back, and there’s a fire in the living room in the front, and there’s no connection,” Hurst says. Fire origins in multiple rooms with no connection: That’s arson.

At Lone Star Guns, the supposed three points of origin were in the same room and within about eight feet of each other. In Hurst’s and Lentini’s views, it’s likely that an aerosol-can explosion, especially one with at least 10 cans involved, could spew flaming liquid seven or eight feet across a room and start separate fires with no obvious connection to the original blaze.

Agent Steele would later testify that he didn’t examine how the spray cans he saw littering the scene might have contributed to the fire. He didn’t inspect them, didn’t seize them as evidence, didn’t take them for testing. “This must be the first fire I’ve ever seen where no chemical analysis was done,” Hurst says. Steele didn’t mention the aerosol cans in his arson report. Though photographs of the scene show exploded cans strewn everywhere, no one documented where they were or what condition they were in. “They were a non-issue,” Steele testified at trial. “With my explosive experience and the fire experience, I know they will heat up and they will burst. ... [But] you don’t get projectiles from the can or anything like that. ... It would immediately vaporize into a cloud and burn if it was in the fire. ... It would not shoot.”

Steele also testified that, by his reading of the burn patterns and the amount of char on the workbenches and bookcases, the three areas of origin had burned about the same length of time. To Steele, that meant Severns had set the three fires at the same time. Estimating burn times is a highly inexact science, Hurst says, because some materials burn faster than others. It’s nearly impossible to discern if one area burned, say, five minutes longer than another.

(Still a fire investigator with the ATF in North Texas, Steele declined an interview request for this story.)

It wasn’t just the ATF picking through the scene at Lone Star Guns. Investigators hired by insurance companies also traipsed through the shop in late August 2004. The first was Mike Makela, an investigator hired by Severns’ insurance company. Insurers have an obvious financial incentive to find arson, which shifts the financial obligation from the company to the arsonist. Still, Makela determined that the fire was accidental.

Makela reported finding one point of origin: a bench near the center of the back room, where he found a frayed electrical cord attached to the desk fan that Severns had left running. Makela theorized that the cord had shorted and sparked the fire. His opinion wasn’t popular. The ATF examined the fan’s electrical cord and determined that the arc (or short) in the wires wasn’t big enough to start the fire. Hurst calls that junk science, saying there is no good research on how big a short has to be to spark a fire.

After Makela left his fire-consulting firm late in 2004, his boss rewrote his report on the Severns case to concur with the ATF’s finding of arson by multiple origins, according to court records. That saved the insurance company money. But Makela never changed his mind. At Severns’ trial two years later, he testified that he still believed there was only one point of origin. (Now a fire investigator in Washington state, Makela didn’t respond to requests for comment.)

Other insurance investigators disagreed with Makela. Investigators hired by insurance companies for two neighboring businesses that sustained smoke damage said it was arson. That’s not surprising, given that this conclusion saved their clients quite a bit of money. What is surprising is that insurer-hired investigators often are allowed to testify in criminal trials. Three insurance investigators ultimately testified against Severns. Like the ATF, none of them had considered the possibility that aerosol cans might have spread the fire to create the appearance of multiple origins.

Hurst believes that many investigators simply don’t know what aerosol cans are capable of because they lack a background in science. Many certified fire investigators are former firefighters or police officers who have completed a training course and passed a written test.

Although fire investigations are more scientific than they once were, say 15 years ago, Hurst says investigators still rely on too many flawed assumptions. He says the Severns case—and its evidence of what aerosol cans can do in a fire—could provide another breakthrough in the ongoing revolution of detecting arson.

The Evidence
Fire investigation has long been more art than science. It’s often impossible to comb through a scene and reconstruct how a fire started and spread. One major challenge is that fire consumes its evidence. Another is that, as a natural phenomenon, fire is erratic and unpredictable. It doesn’t always behave the same way.

John Lentini explains it like this: You “get a motel that’s gone out of business—and this has been done—and set some test fires and do some fire research. You have 10 identical rooms. You have 10 identical sets of furniture in exactly the same location. If you go into those 10 rooms and light them in exactly the same place, I’m going to get 10 different results.”

In the face of such challenges, fire investigators for decades relied on a series of assumptions about how fire behaves to determine which blazes were set intentionally. Their methods weren’t scientific. Yet their evidence has sent tens of thousands of people to prison for arson. Much of it was wrong.

In the past 20 years, experiments have disproved many of the old assumptions—that arson fires burn hotter and faster, that a certain burn pattern on the floor means gasoline was used—and exonerated dozens of people wrongly convicted. For years, investigators thought “crazed glass”—in which weblike cracks form on a window—was proof that a fire had burned especially hot and fast, indicating the presence of an accelerant that an arsonist had used to ignite the blaze. Recent experiments have shown that accidental fires can burn just as hot as (or hotter than) arson fires. And researchers have discovered that crazed glass actually results when water from fire hoses hits a hot window.

Researchers have also identified a phenomenon known as “flashover,” which happens when enough smoke and gas intensify to make a room explode into flames. After flashover, an accidental fire can leave many of the clues that investigators once thought indicated arson. At flashover, a fire can spread quickly in many directions—even downward, which investigators once thought was impossible—and create numerous burn holes in the floor, once thought to prove an arsonist had ignited several starting points. Flashover can also leave patterns on the floor that mimic a gasoline pour pattern.

Arson is one of the rare crimes in which a defendant can be convicted almost exclusively on the testimony of a forensic expert. Anyone with an insurance policy has a built-in motive. No one knows exactly how many innocent people have been sent to prison by arson experts armed with flawed evidence (there are more than 800 people incarcerated in Texas on convictions related to arson). All we have are the many, many anecdotes.

Sonya Casey was convicted in 1997 of killing her uncle, who had raised her from childhood, in a house fire. Her supposed motive for killing him was to claim his bank account, which contained a few hundred dollars, not enough to pay for the funeral. After the conviction, Casey’s lawyers contacted Hurst.

Until then, Hurst—who holds a Ph.D. in chemistry from Cambridge—had spent the better part of three decades working in the private sector as a fire and explosives expert. He had testified mainly in civil cases. Hurst and his wife drove to West Texas to meet Casey. On the drive, Hurst dug into the case file and was horrified to see flawed, outdated fire science being used in a capital murder case. Casey was innocent, and Hurst’s testimony helped exonerate her.

Since then, Hurst has testified, pro bono, in dozens of cases around the country. They include two of the most famous recent examples of injustice in Texas. Hurst helped exonerate Ernest Ray Willis, who spent 17 years on death row for a fire he didn’t start, before his release in October 2004. Like Willis, Cameron Todd Willingham was convicted of arson-murder based on such flawed evidence as crazed glass and pour patterns. Hurst wrote a detailed report documenting the many flaws in the case. It was ignored by Gov. Rick Perry. Willingham was executed in February 2004. The Texas Forensic Science Commission is examining the Willingham and Willis cases and is expected to release its report soon. (See “The Price of Innocence,” Jan. 26, 2007.) If the commission concludes that Willingham was wrongly convicted, Texas would be the first state to admit it executed an innocent man.

In early 2006, a friend of Curtis Severns saw an article on Hurst in Parade magazine. After Hurst examined the evidence against Severns, he became convinced the Lone Star Guns fire was accidental. He believes that Makela, the first insurance investigator, had it right: A short in the cord to the desk fan sparked a piece of paper or an oily rag or some other combustible. The fire grew for a few minutes—in the gun shop, it found no shortage of fuel—until it heated the case of 10 cans of gun cleaner that Severns had bought the day before at his gunsmith’s request.

The cans could have exploded in several different ways. If the top seal fails, the flammable liquid will blow out the top, and the can will turn into a standing blowtorch, spewing flaming liquid as high as 10 feet into the air. If the sides fire out, the can will explode and spew flammable material outward. If the bottom seal blows, the can will fly off like a rocket, streaming flames, and travel up to 20 feet. (Dozens of other spray cans sat in other areas of the shop. Severns told the Observer that a spray can had exploded from the heat and shot paint onto a peg board several feet away.)

With Hurst and Lentini prepared to testify that aerosol cans can toss flaming liquid across a room—contradicting Steele’s testimony that they couldn’t—prosecutors decided they would need a convincing rebuttal witness. They called John DeHaan.

DeHaan, a former ATF investigator who owns his own fire consulting firm in California, is often described as the nation’s leading fire investigator. He wrote the book on it, literally; he’s the author of Kirk's Fire Investigation, one of the field’s most commonly used texts. During his thirty years in the field, he’s testified in dozens of trials, frequently for the prosecution and often in consultation with former ATF colleagues.

DeHaan testified that the Lone Star Guns fire was arson. He said he used calculations involving the time the fire burned and the available “fuel package” in the room to determine the expected intensity of the fire if it were accidental. According to his analysis, DeHaan said, the amount of damage could only have been caused by fires set in three locations. He told jurors that spray cans could not have spread the fire. “It’s a big sudden flame, and then it burns out,” DeHaan testified. “[T]he material does not form a residue that’s going to burn for any length of time. When [the cans] fail, they produce a flash of a very brief duration. ... The remains of the can may fly away, but it’s not going to spread the fire.”

In recent years, DeHaan has developed a series of calculations to determine the size, speed, and heat of a fire. (Hurst and Lentini contend that DeHaan’s formulas—based in part on numbers the fire-prevention industry uses in the development of sprinkler systems—have too big a margin for error and are unreliable in reconstructing fire scenes.) DeHaan recently admitted, in an interview with the Observer, that it’s “theoretically possible” that the fire was accidental.

In one recent case, DeHaan’s calculations led to a false conviction. In 2002, DeHaan was the key prosecution witness in a Louisiana arson case. He said that a young mother had burned down her house with her children inside. He’d reached this conclusion, he testified, by examining fire reports and photographs of the scene, and using his formulas to determine that the blaze was too big and spread too quickly to have been accidental. The grand jury was convinced, and Amanda Hypes was indicted and faced the death penalty. She spent more than four years in jail awaiting trial. In 2008, after Hypes’ indictment was thrown out because of procedural problems, DeHaan reconsidered his calculations. After determining the fire started earlier than he realized, he withdrew his arson conclusion and said the fire was accidental. All charges were later dropped.

In Severns’ case, DeHaan’s testimony may have had a huge impact on the jury. After three weeks of complicated testimony—the trial transcript runs to more than 3,000 pages—the jury was overwhelmed and confused by the conflicting accounts of various experts. At least that’s what Severns’ trial attorney, Bob Jarvis, believes. DeHaan was one of the final witnesses, and his testimony that spray cans typically don’t spread fire likely won them over. But was it the truth?

The Video
Curtis Severns had already been in jail for nearly a year when John Lentini obtained the 1994 ATF training video from someone he knew in the agency. In the 23-minute video, agents test how aerosol cans will react in a fire. They furnished a kitchen in an abandoned home in New Orleans, then placed a box of groceries, including spray cans, on a hot plate. After several minutes of burning, one of the cans erupts into a fireball. Flaming liquid is tossed across the room, igniting smaller, satellite fires on a countertop and the floor. A few minutes later, after a second explosion, a spray can bursts off the hot plate, around a metal fence erected to contain the cans, off a cabinet, and bounces several times on the floor. The can trails flaming liquid as it flies. Satellite fires, with no obvious connection to the original blaze, burn on the floor and in a chair several feet away. (See video below.)

The supervising ATF agent in the Severns investigation, Kelton Thornton, helped oversee the New Orleans test in 1994. Thornton denied an interview request. But in an affidavit submitted to the 5th Circuit, opposing a new trial for Severns, Thornton wrote that he knew about the video but didn’t consider it relevant because the test was done in a house, not a gun shop. The scenarios are different, he said. Steele wrote in his own affidavit that the ATF video actually verified his testimony against Severns. He claimed that the fires caused by spray cans in the test video are too small to be mistaken for points of origin.

Hurst says that’s hogwash. If the flaming liquid had hit something more flammable than a kitchen chair—a couch, say, or papers on a workbench—it would ignite flames and look like a point of origin. “They did this [test] in a kitchen,” he says. “There’s not very much flammable in a kitchen.” Lone Star Guns, by contrast, “had things like cardboard boxes, paper, paper stuck to the wall. There was paper all over the place.” Tracey Batson, the assistant U.S. attorney who prosecuted Severns, says that the video is irrelevant to the case and that the fire was clearly arson. “It’s not rocket science, once you look at it. It’s common sense,” she says. “They tried this [spray can argument] in front of the jury and it didn’t work. The reason it didn’t work is because once you apply your common sense, you can see that their theory is ridiculous. It’s bogus. ... It wasn’t possible for it to happen the way they said. ... This aerosol can stuff? Crap is what it is.”

DeHaan says he hasn’t seen the ATF video. But he’s modified his position on aerosol cans. DeHaan tells the Observer that spray cans might be able to spread fire. He now says he’s seen it happen. “It’s a hypothesis you do have to consider. They can cook off during a fire. Depending on their contents and the fire conditions around them, they may or may not produce any fire spread. ... If it ignites in a fire and shoots across the room, could it produce a trail of flaming liquid? The answer is yes.”

That would seem to contradict his testimony that helped send Severns to prison. But DeHaan stands by his contention that Severns is guilty of arson. The aerosol cans in Lone Star Guns couldn’t have spread the fire because they were trapped under the workbench, he says, pinned in by a drum of chemicals on either side. “So the question is, could they get out from under the workbench and get to where the other fires were, and the answer is no.

“I will certainly accept the hypothesis that exploding aerosol cans can spread fire, but not in this case. They didn’t do it because of the physical constraints of the scene.”

In DeHaan’s latest version, then, Severns’ guilt hangs on the exact location of a case of aerosol cans before the fire. The trouble is, there is no evidence that the cans were under the workbench.

Before the trial, when Severns described the contents of his shop during an e-mail exchange with Hurst, he wrote that the cans were on top of a drum of chemicals next to the workbench. Answering questions from the Observer, Severns gave exactly the same scenario he provided Hurst three years ago: He brought the case of gun cleaner into the shop and placed it on top of the drum for his gunsmith to use. That’s where the cans remained until the fire, he says. They were out in the open and several feet off the ground. If so, by DeHaan’s own reasoning, the cans could have spread the fire.

Asked why he believes the cans were under the bench, DeHaan says, “I believe that was the testimony of the guy who worked at that workbench. At least, that was the information we had.”

There is no testimony in the trial transcript about the cans being under the bench. The gunsmith who was using the spray cans, James Darst, remembers Severns giving him a case of cans a day or two before the fire. He placed them on top of the barrel, he says. “The last time I saw them, they were sitting on top of that drum,” Darst told the Observer during a recent phone interview. “I remember that came up when the fire investigator was asking about it. That drum had a flat metal lid, and we were bad about setting stuff on top of if, just because it was an empty flat spot.” He says he never put the cans under the workbench.

“The prosecution has created this myth that the cans were under the workbench,” Hurst says. “But they’re not. This is a workbench, not a storage area. So no one is going to put a case of cans down there because this is a work area. The case of cans was sitting on this drum.”

When told in a follow-up interview that the spray cans likely were on top the drum, DeHaan modifies his position further. He still believes it was arson but says the spray cans can’t be ruled out. “An expert relies on the information that is given to him before trial and that’s the information I had. ... I saw no involvement of cans rocketing around the room. [But] is it theoretically possible? Sure.”

The Aftermath
Sue Severns still lives in the Sherman house that Curtis designed for them. They moved in a year before Curtis went to prison. As long as Sue remains, she says, Curtis is never completely gone. She’s reminded of him everywhere she looks—at all the little engineering touches he designed, at the wooden steps he insisted on, at the stained-glass windows he helped her construct.

She lives in the modern, two-story house with two of her children. (One of her kids from a previous marriage has gone to live with his father.) “He is still the best dad,” Sue says. “I just think of all the things he did with the kids. And how badly we need him here.”

She remembers Curtis’ last night at home—the night before the jury’s verdict in December 2006. He came into their room and told Sue he’d just put their 2-year-old boy to bed. “He said, ‘That might be the last time I hug my son.’ I knew right then, if something bad happened with the jury that ...” She trails off and begins to cry. After a minute, she says, “You have to know I don’t talk about this. I don’t tell people I work with. Everyone thinks he’s traveling.”

Sue and Curtis, she says, were “best friends.” They were introduced by a mutual friend in 2002 and clicked right away. She’s the artistic type, the dreamer. He’s the planner, the implementer, the logical thinker who has to map out everything. Before their first date, Curtis asked Sue if she wanted an all-day date or a two-hour date. He had detailed scenarios for both. (He has also given her, from prison, a list of 78 projects to finish around the house.)


Federal prisons are stricter than state jails. No conjugal visits are allowed. Sue and the kids drive to Beaumont at least twice a month for visits of four to five hours. She is permitted to kiss Curtis twice, hello and goodbye.

Sue tries to remain hopeful that her husband will be exonerated, but it’s hard. Recently the 5th Circuit U.S. Court of Appeals denied Severns’ request for a new trial because the ATF video hadn’t been disclosed to his attorneys. Judge Priscilla Owen wrote that the prosecution erred, but that the video wouldn’t have affected the outcome (which is the standard for a new trial). The appeals court also recommended a 10-year reduction in Severns’ sentence because prosecutors had been overeager with multiple charges for the same crime. The U.S. attorneys piled 17 counts on Severns for the same fire, including charges of arson, mail fraud, wire fraud, and using arson to commit wire fraud (essentially, every communication Curtis had with his insurance company after the fire became an instance of fraud).

A federal district judge will decide just how many, if any, years will come off Severns’ sentence. Even if the full 10 years are removed, that would still leave him with 15 more in prison. Severns’ lawyer plans to continue appealing his conviction.

Meanwhile, Sue says she has thought about selling the house. It sits several miles outside of town. She has no family nearby, few friends, and no support system. “It’s lonely being out here all by ourselves,” she says.

Still, she wants the house to be there when Curtis leaves prison. She wants them to live together again, a family, in the house they built. For now, she’s holding on to it."

Harold Levy...hlevy15@gmail.com;

UPDATE: CAMERON TODD WILLINGHAM CASE; PART 8; STATUS OF INVESTIGATION INTO HIS CASE; TEXAS MORATORIUM NETWORK;

"IF EVER A CASE EMBODIED THE DISASTROUS CONSEQUENCES OF THE OBSOLETE BELIEFS ABOUT FIRES, IT IS CAMERON TODD WILLINGHAM'S. THE TEXAN WAS CONVICTED IN 1991 OF THE ARSON MURDERS OF HIS THREE CHILDREN, ALL UNDER AGE 3. IN 2004, WILLINGHAM'S APPELLATE LAWYER — WALTER REAVES — COMMISSIONED A REVIEW BY CHEMIST GERALD HURST, A KEY PLAYER IN THE FIRE INVESTIGATION WARS. HURST'S POWERFUL REPORT DEBUNKED ALL 20 SO-CALLED "ARSON INDICATORS" USED TO CONVICT WILLINGHAM. HE WAS EXECUTED ANYWAY."

TEXAS MORATORIUM NETWORK;

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"We received the below email response to an inquiry to the Texas Forensic Science Commission on the status of the investigation into the cases of Todd Willingham and Ernest Willis," the Texas Moratorium Network update, published on March 31, 2009, begins;

"Willingham was executed in 2004 in Texas, but many fire experts have concluded that the arson fire that he was convicted of was actually an accidentlay fire, which would mean Texas executed an innocent person," the update continues;

"Ernest Willis was exonerated and released from Texas death row in 2004 after authorities cleared him of setting an arson fire in another case.

The deadline for Dr. Beyler to complete his investigation is June 1st. At that time, the Commission may provide a brief update. However, the Commission intends to develop their own report based on Dr. Beyler’s recommendations/conclusions. The timeline for the Commission to release such report has not been decided.

Leigh M. Tomlin: Texas Forensic Science Commission;

Below is an excerpt from a February 7, 2009 article by Sue Russell on the issue:

"In America, while suspects are presumed innocent until proven guilty, frequently fires are not presumed accidental until proved to be arson. All fires necessitate an extra investigative step — an independent, science-based determination of arson to first ascertain that a crime even took place.

Civil cases often bifurcate issues of liability and damages, making the jury's first task to determine if a fire was intentionally set. Criminal arson cases seem to cry out for the same approach, given that a determination of arson alone can never definitively tie a person to a crime scene or unequivocally reveal a perpetrator's identity.

Yet any serious proposal for a similar system would be met, Lentini surmised, with "universal screaming and gnashing of teeth," and allegations that criminals were being allowed to slip through the net.

Gnashing teeth notwithstanding, the need for reform is critical. Lentini cites figures of 75,000 suspicious fires every year — "That's 75,000 chances to get it wrong," as he told CNN's Anderson Cooper.

According to a 2002 Bureau of Justice Statistics report, in just half the states in the U.S., more than 5,000 people are in prison for arson crimes. Arson is the only crime for which someone can receive the death penalty based on the testimony of an expert witness whose education ended with high school. And although no one spoken to for this article would hazard a specific estimate of how many innocents are imprisoned on arson convictions, answers ranged from "dozens to hundreds" to "tons."

If ever a case embodied the disastrous consequences of the obsolete beliefs about fires, it is Cameron Todd Willingham's. The Texan was convicted in 1991 of the arson murders of his three children, all under age 3. In 2004, Willingham's appellate lawyer — Walter Reaves — commissioned a review by chemist Gerald Hurst, a key player in the fire investigation wars. Hurst's powerful report debunked all 20 so-called "arson indicators" used to convict Willingham. He was executed anyway.

While it's too late for Willingham, the New York Innocence Project was galvanized to create an Arson Review Committee corralling five top experts, including Lentini and veteran investigator Douglas Carpenter, to compare Willingham's case to that of Ernest Willis, a fellow Texan convicted on similar evidence of setting a fire that killed two sleeping women in a house he was staying in. After 17 years in prison and only months after Willingham's execution, Willis was exonerated and released.

The Arson Review Committee's 2006 report echoed Hurst in discrediting all the "arson indicators" found by deputy state fire marshal Manuel Vasquez at the Willingham fire. Patterns Vasquez attributed to ignitable liquid or accelerant, it concluded, could not be used to distinguish arson from an accidental fire.

The report is now under review by the Texas Forensic Science Commission, whose chair, Sam Bassett, told Miller-McCune.com that it has voted to hire an expert to lead them in their investigation. The commission is charged by statute with conducting investigations. If they concur with all the other experts, they could make recommendations for further review or even for system reform.

"I believe it would be within our purview to comment upon any broader issues such as the possibility of misconduct or professional negligence in other cases," Bassett wrote in an e-mail. "However, that is dependent first upon our finding that misconduct or professional negligence occurred in the Willis/Willingham case. Until we receive feedback from our expert, the Commission will remain neutral on this issue and there will be no further comment until such time as we issue our report."
The possibility of misconduct and professional negligence?

"Boy, there's a political football for you," Hurst said skeptically, imagining the ramifications of an official admission that an innocent man was executed.

Carpenter is more optimistic. "I'd certainly hope something tangible comes from the process," he said. "I think they're taking it seriously."

Yet Reaves, the attorney, worries that the commission's very review could do more harm than good: "I just have a hard time envisioning a state sponsored commission coming down and saying, 'Oops, we killed a guy that we shouldn't have killed." He predicted that it will conclude — wrongly — that Willingham was an isolated incident, or a problem that has been remedied and won't happen again."

hlevy15@gmail.com

TEXAS SENATE MAKES IT EASIER TO CHALLENGE DISCREDITED FORENSIC EVIDENCE: WILLINGHAM CASE CITED; MARSHALL NEWS MESSENGER REPORTS; BILL OFF TO HOUSE;

One case to attract attention was that of Cameron Todd Willingham, convicted in a fire that destroyed his family home in Corsicana two days before Christmas in 1991.

According to investigators, Willingham poured a combustible liquid on the floor and intentionally set the house on fire, resulting in the death of his three children. He was executed in February 2004, but the New York-based Innocence Project and other advocates have since called his conviction into question based on advancements in arson investigations.

Reporter Mike Ward: Marshall News Messenger. A daily newspaper published in Marshall, Texas;

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"Criminals who were sent to prison — or sentenced to death — based on discredited scientific evidence would be given a new way to challenge their convictions under a bill yesterday morning by the Texas Senate," the story by reporter Mike Ward published today by MarshallNewsmessenger.com begins;

"In recent years, an increasing number of arson and gunshot convictions in Texas have triggered alarm as new technology proved earlier evidence wrong, and convictions were cast into doubt — including at least one case in which the prisoner was executed," the story continues;

"The measure by state Sen. John Whitmire, D-Houston, would allow discredited scientific evidence that figured in a criminal conviction to be considered by an appeals court in order to establish the innocence of a defendant.

“This could help restore someone’s liberty in cases where discredited evidence was used to convict them,” Whitmire said. “I majored in political science, not forensic science, but I know this will improve current law.”

Advancements in forensic testing — DNA, ballistics and arson — have led to new evidence being uncovered in several cases in Texas. Whitmire said that led him to file the bill, which clarifies how discredited scientific evidence can be used in court appeals.

Key issue for those appeals: That the new information could not have been known earlier, when the defendant was convicted, because the science used to validate it has since been invalidated.

Senate Bill 1256 was supported by prosecutors, Whitmire told the Senate.

One case to attract attention was that of Cameron Todd Willingham, convicted in a fire that destroyed his family home in Corsicana two days before Christmas in 1991.

According to investigators, Willingham poured a combustible liquid on the floor and intentionally set the house on fire, resulting in the death of his three children. He was executed in February 2004, but the New York-based Innocence Project and other advocates have since called his conviction into question based on advancements in arson investigations.

Whitmire’s measure, one of several bills this session that seek to upgrade state law based on emerging investigative technology, was approved unanimously on a voice vote. It now goes to the House for consideration."

Harold Levy...hlevy15@gmail.com;

DAVID KUNZE CASE; PART THREE; A FORENSIC SCIENTIST'S VIEWS ON EARPRINT EVIDENCE; LULLING FACT-FINDERS INTO FALSE BELIEFS;

"THERE IS AN EVEN GREATER DANGER THAT WELL-MEANING LABORATORY EXAMINERS WILL, WHEN DEFENDING THEIR LIVELIHOOD ON THE WITNESS STAND, OVERSTATE THE PROBATIVE VALUE OF THEIR FINDINGS AND THUS LULL A FACT FINDER INTO THE FALSE BELIEF THAT THE FORENSIC EVIDENCE PROVES MUCH MORE THAN IT ACTUALLY DOES. SINCE FORENSIC EVIDENCE IS ORDINARILY PRODUCED ONLY BY THE PROSECUTION, THE RESULT IS, INEVITABLY, A CONVICTION THAT RESTS ON LESS SOLID SCIENTIFIC GROUNDS THAN THE FACT FINDER HAS REASON TO BELIEVE."

ANDRE MOENSSENS; EDITORIAL COMMENT;Forensic-Evidence.com;

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Andre Moenssens authored Fingerprints and the Law (1969) and Fingerprint Techniques (1971), was the senior co-author of Scientific Evidence in Civil and Criminal Cases (5th edition, 2005), and Cases and Comments on Criminal Law (7th edition, 2003). He has also written dozens of articles, presentation and position papers, books and book chapters, and commentaries on criminal justice and the forensic evidence.

"In other stories on this site we have told our readers about the ear print evidence experience which caused David Kunze and Mark Dallagher to spend years in prison until their convictions were reversed," Moenssen's editorial comment, published under the heading "Ear Print Case Commentary Blames "Forensic Science," begins;

"The forensic sciences are being blamed for these lapses, and they deserve the blame when earnest and well-meaning police experts seize upon a novelty that "sounds good" and rush in, using unproven and potentially unreliable expert conclusions to obtain convictions without having engaged in the careful scientific scrutiny that is expected of persons who profess to act as "scientists," the editorial comment continues;"

"If forensic science wants to be taken seriously, at a minimum such rush-to-judgment stampedes on novel evidence that has not been exposed to careful testing for accuracy and reliability must stop.

Mark Dallagher’s ordeal caused by ear print evidence has been criticized widely in the U.K. On February 3, 2004, the London Times (OnLine edition), ran an article by Roger Ede titled, "Wrongful convictions put forensic science in the dock." See http://www.timesonline.co.uk/article/0,,200-984075,00.html Ede is, himself, a co-author of a 2003 book on forensic practice in criminal cases published in the U.K. In the story, the author comments on a number of wrongful convictions that have occurred in Great Britain. These cases dealt with different branches of the forensic sciences. About the ear print case, Ede said:

"Mark Dallagher was jailed in 1998 after a prosecution expert told his trial that an earprint on a window at the home of the victim, a 94-year-old-woman, was certainly his. That evidence has since been discredited and new DNA evidence has implicated a different person. Mr. Dallagher was cleared last month."

"Forensic Science" is a broad label, under which many different disciplines labor. Some of these disciplines can point to many years of experience and have amassed a voluminous professional literature that sits atop of accumulated data supporting a good-faith belief in the worth of its findings. Friction ridge impression evidence is one of these. Forensic document examination is another. There are others. But research can never stop in any field. No matter how convinced in the infallibility of a profession’s tenets one may be, research challenging its conclusions is always desirable and should never be abandoned. After all, if the belief in the reliability of a science is so powerful, any additional research is simply likely to keep reinforcing the foundation for that belief. Additional research is not an enemy of established forensic sciences that are worthy of trust. But such research will ferret out instances where the trust is unwarranted.

The real danger in disciplines that have existed for a long time is not that their underlying premises will be proved wrong, but that experts in the field will go farther than research and experience of the past justify. There is a danger that methodologies that are used for some purposes will be misused, often unintentionally and in good faith, to achieve results which the methodologies cannot warrant. There is an even greater danger that well-meaning laboratory examiners will, when defending their livelihood on the witness stand, overstate the probative value of their findings and thus lull a fact finder into the false belief that the forensic evidence proves much more than it actually does. Since forensic evidence is ordinarily produced only by the prosecution, the result is, inevitably, a conviction that rests on less solid scientific grounds than the fact finder has reason to believe."

Harold Levy...hlevy15@gmail.com;

DAVID KUNZE CASE: PART TWO; THE WASHINGTON COURT OF APPEALS REJECTS CORNELIS VAN DER VUGTS EARPRINT TESTIMONY;

"HE (CORNELIS VAN DER VUGT) HAD BEEN TO COURT IN SIX EARPRINT CASES, ALL IN HOLLAND, AND THE JUDGES IN THOSE CASES HAD NOT BEEN CONCERNED ABOUT HIS METHODOLOGY; INDEED, THEY HAD “ACCEPTED THAT YOU CAN IDENTIFY AN INDIVIDUAL BY HIS EARPRINT.” HE DID NOT PRESENT OR REFER TO ANY PUBLISHED LITERATURE STATING THAT EARPRINT IDENTIFICATION WAS GENERALLY ACCEPTED IN THE SCIENTIFIC COMMUNITY;"

MORGAN J. FOR THE UNANIMOUS WASHINGTON COURT OF APPEALS;
(State v. Kunze, 1999 WL 1017935 (Wash. App. 1999));

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"David Wayne Kunze appeals his convictions for aggravated murder and other crimes," the appeal court's decision begins;

"The principal issue is whether the State's witnesses could opine, based on the relationship among some of the anatomical features of the external ear, that Kunze was the probable and likely source of a latent earprint discovered at the scene," the decision continues;

"Other issues are whether two police officers could opine that the crime scene might have been staged to look like a burglary, and whether the trial court properly restricted the cross-examination of a jailhouse informant. We reverse and remand for new trial.

In the early morning hours of December 16, 1994, an intruder entered the Clark County home of James McCann. McCann was asleep in the master bedroom. His son Tyler, age 13, was asleep in another bedroom. The intruder bludgeoned McCann in the head with a blunt object, causing his death. The intruder also bludgeoned Tyler in the head, causing a fractured skull. When the intruder left, Tyler crawled out to the front porch, where he was found after daylight by a passerby.

While awaiting surgery at the hospital, Tyler told the police that he had been afraid to look at his attacker closely. He thought, however, that the attacker was a darkly complected male, possibly Puerto Rican, about six feet tall with medium build, dark or black hair to mid-ear, 25 to 30 years of age, and a deep voice. Tyler later recalled that the attacker wore gloves but not glasses, and had a flashlight in his mouth. Kunze is in his mid-forties, wears glasses, and has reddish-blond hair.

Back at the house, the police observed that the intruder had opened drawers and cabinets without disturbing the contents. They also found that the intruder had taken a TV, a VCR, stereo speakers, a “boom box,” McCann's wallet containing identification and credit cards, McCann's truck, and various other items.

George Millar, a fingerprint technician with the Washington State Crime Laboratory, processed the home for evidence. He discovered a partial latent earprint on the hallway-side surface of McCann's bedroom door. He “dusted” the print by applying black fingerprint powder with a fiberglass brush. He “lifted” the print by applying palm-print tape first to the door and then to a palm-print card. The resulting print showed the antitragus and portions of the tragus, helix, helix rim, and antihelix. The external features of a complete ear are shown in the following diagram.

The police were immediately interested in Kunze, notwithstanding Tyler's description of the intruder. Kunze had been married to Diana James from 1976 to April 1994. On December 12, 1994, four days before the intruder entered McCann's home, James told Kunze that she and McCann were planning to be married. Kunze was upset by the news, according to his own later statement.

The police interviewed Kunze several times. They also searched, with his consent, his truck, house, boat, storage locker, and safety deposit box. The searches did not disclose anything significant, with the possible exception of a receipt for a flashlight.

On or about March 28, 1995, Michael Grubb, a criminologist with the Washington State Crime Laboratory, compared the latent print from McCann's bedroom door with photos of the left side of Kunze's face. He concluded that the latent print “could have been made by Dave Kunze.” He also thought that “[i]t may be possible to obtain additional information by comparing the [latent print] to exemplar impressions.”

On September 21, 1995, Millar and Grubb met with Kunze to obtain earprint exemplars. Neither had taken an earprint exemplar before, although each had practiced on laboratory staff in preparation for meeting with Kunze. For each of the seven exemplars they took, they had Kunze put hand lotion on his ear and press the ear against a glass surface with a different degree of pressure (“light,” “medium,” or “hard”). They then dusted the glass with fingerprint powder and used palm-print tape to transfer the resulting impression onto a transparent plastic overlay.

The reason Millar and Grubb took multiple exemplars is that they were consciously trying to produce one that would match (i.e., “duplicate” the latent print from McCann's door. They knew that earprints of the same ear vary according to the angle and rotation of the head, and also according to the degree of pressure with which the head is pressed against the receiving surface. They did not know the angle and rotation of the head that made the latent print, or the degree of pressure with which that head had been pressed against McCann's door. Hoping to compensate for these difficulties, they told Kunze to use a different degree of pressure each time (“light,” “medium” or “hard”), and they looked at the latent print as they worked.

After Millar and Grubb took the exemplars, they were asked to compare them to the latent print. Millar declined because his laboratory supervisor thought that earprint identification was “out of the expertise of the [crime lab's] latent unit.” Grubb went ahead, concluding that “David Kunze is a likely source for the earprint and cheekprint which were lifted from the outside of the bedroom door at the homicide scene.”

In June 1996, the State charged Kunze with aggravated murder, assault, robbery, burglary, and kidnapping. In October 1996, Kunze moved for “a pre- trial order excluding any evidence of earprint identification.” In December 1996, the trial court convened a Frye hearing at which Grubb and other witnesses were called. We must understand their testimony in detail in order to resolve the issues on appeal.

Grubb testified to extensive qualifications as a criminalist. He had been working as a criminalist for more than twenty years, and he was currently the manager of the state crime lab's Seattle office. Although he had never before dealt with earprints, he specialized in firearm and toolmark identification, and he had analyzed “impression evidence” of other kinds. He had not seen any data or studies on earprints, or on “how often an ear having the general shape of the questioned print in this case appears in the general human population;” he thought, however, that a Dutch policeman named Cor Van der Lugt might have such information. He had used transparent overlays to compare the latent and the exemplars in this case, and such overlays are a generally accepted method of making comparisons. When he compared the latent print with the exemplars taken from Kunze, he emphasized the exemplars taken with “a lighter amount of pressure,” because those “more closely approximated ... the impression from the crime scene.” He claimed that latent earprint identification is generally accepted in the scientific community, reasoning that “the earprint is just another form of impression evidence,” and that other “impression evidence is generally accepted in the scientific community.” He concluded that “Mr. Kunze could be the source of [the latent] impression, and even further, I believe it's likely that the impression from [the] crime scene is Mr. Kunze's ear and cheek print.”

Cor Van der Lugt testified to extensive qualifications as a police evidence technician. He had been a Dutch police officer since 1971 and a crime scene officer since 1979. He had trained other crime scene officers for many years. Being interested in the reliability of earprints, he had written “a lot of letters all around the world to people who did something with earprints, but unfortunately ... didn't get too much of [a] response.” He had adopted methods used by Professor Lunga of Germany, “who did [an] investigation as to what parts of the ear look alike between parents and their children;” methods used by Mr. Hirschi of Switzerland, who “did an investigation between the relation of the height of defining of an earprint and the body length of the offender;” and the methods used by several other people in the eastern part of Germany. He had received over 600 cases “for comparative analysis” and had made an identification to his own satisfaction in “somewhere between 200 and 250 cases.” On the basis of “somewhere between 100 and 200 prints,” he had concluded that pressure distortion is not a problem that prevents you from making an identification or a comparison between ears, even though you must “get the same pressure on the ear as the ear that was found on the scene of a crime;” the solution, he thought, was merely to take several exemplars under different degrees of pressure, then “pick the one that comes closest” to the latent print. He had been to court in six earprint cases, all in Holland, and the judges in those cases had not been concerned about his methodology; indeed, they had “accepted that you can identify an individual by his earprint.” He did not present or refer to any published literature stating that earprint identification was generally accepted in the scientific community. He did, however, testify as follows:

Q: [D]o you have an opinion as to whether ... the uniqueness of the human ear as a basis for personal identification is a notion that is generally accepted in the Netherlands and elsewhere amongst those engaged in forensic identification?
A: It is accepted, yes.

Alfred V. Iannarelli testified to extensive qualifications as a law enforcement officer. For 30 years, he had worked as a deputy sheriff in Alameda County, California, as the chief of campus police at California State University at Hayward, and in several other law enforcement positions. Thereafter, he had worked as a consultant on ear identification. He became interested in ears in 1948, and over the next 14 years classified perhaps 7,000 ears from photographs (but not from latent prints). In 1964, he published a book describing his system, which he calls “earology” or the “science of ear identification.” In 1989, he published a second edition through a different publisher. He had been prohibited from testifying in a 1985 Florida case called State v. Polite on the ground that his system of ear identification was not generally accepted in the scientific community. He had testified without objection in a 1984 California murder case called People v. Anzillotti. He did not know of any published scientific studies confirming his theory that individuals can be identified using earprints, and he did not claim that his system was generally accepted in the scientific community. On the contrary, he testified:

Q: Are you aware of any scientific research at all that would confirm your theory that ears are so unique that individuals can be positively identified by comparing known earprints with latent ear impressions?
A. Ear photographs, not earprints. Counsel, this is relatively a new science.

His personal belief was that human ears are sufficiently unique to support a positive identification in an appropriate case, and that the latent print left on McCann's door “matche[d] exactly” the exemplars taken from Kunze.

The 1989 edition of Iannarelli's book was introduced along with his oral testimony. Titled “Ear Identification,” it is published by the Paramont Publishing Company of Fremont, California. It contains no bibliography and no scientific verification.

Dr. Ellis Kerley testified to extensive qualifications as a physical anthropologist. He has a doctorate in anthropology from the University of Michigan and was for many years a professor of that subject. He has taught the anatomy of the human ear. He formerly was President of the American Academy of Forensic Sciences, and President and First Diplomate of the American Board of Forensic Anthropology. He has worked on cases such as the assassination of President John F. Kennedy. He thought that the human ear is probably different for each person, but he had “no information” indicating whether one ear can be differentiated from another by observing the ear's gross external anatomy. He did not “consider Mr. Iannarelli's work scientific;” on the contrary, it was “narrative,” not “reported in a scientific manner,” and “not subjected to any statistical analysis.” He rejected Van der Lugt's approach of “apply[ing] pressure until you can make the [exemplar] prints look about the same” as the latent print in issue; as he put it, “we don't do that in science ... [b]ecause we're not trying to make them look alike.” He stated that earprint identification “has not been presented in generally scientific sessions or publications,” and that he was not “aware of any scientific research or authoritative literature ... concerning earprint identification[.]” It was his opinion that earprint identification has not achieved “general acceptance” in the forensic science community.
Professor Andre Moenssens testified to extensive qualifications as a fingerprint examiner and law professor. He began his career as a criminalist in Belgium. He holds a J.D., and an LL.M. in scientific evidence. He teaches scientific evidence and has published numerous books on that subject. He testified in part:

Q: [D]o you have an opinion whether or not earprint identification is generally accepted as reliable in the forensic science community?
A: [T]he forensic sciences ... do not recognize as a separate discipline the identification of ear impressions. There are some people in the forensic science community, the broader forensic science community, who feel that it can be done. But if we are talking about a general acceptance by scientists, there is no such general acceptance.
Q: Is there any evidence that earprint identification has ever been tested by scientific methodology?
A: To my knowledge, it has not been.
Q: Or adequately subjected to scientific peer review?
A: If by peer review, you mean inquiry and verification and studies to confirm or deny the existence of the underlying premise, that is, ear uniqueness, to my knowledge that has not been done.
...
Q: With respect to earprint identification, has it ever been shown that results can be reliably obtained in terms of an acceptable rate of error?
A: To my knowledge, there has been no investigation in the possible rate of error that comparisons between known and unknown ear samples might produce.

While he agreed that one earprint can always be compared with another, he noted that “[t]he question is whether that comparison means anything.” He did not know of any generally accepted methods for recording ear characteristics or determining the significance of a “match.”

George Bonebrake testified to extensive qualifications as a latent fingerprint examiner. He worked for the FBI from 1941 to 1978, when he retired and became a private fingerprint consultant. During his last three years with the FBI, he was in charge of its latent print section, supervising 100 examiners and 65 support people. He never identified anyone based on earprints, and to his knowledge no one else at the FBI did either. He testified:

Q: Is there anything in the materials that you have read that indicates earprint identification has been generally accepted in the forensic science community?
A: No, sir.
Q: What is your impression of the state of earprint identification at this point in forensic science history?
A: That there have been a few cases of individuals making earprint comparisons and identifications, but I'm not aware of any study or research that would indicate to me the uniqueness of earprints when it comes to the comparison of [known] earprint impressions ... with the latent earprint impressions; that's based on class characteristics.
...
Q: Does the literature indicate that there are problems in attempting to obtain earprint exemplars?
A: Especially when it comes to pressure, yes, sir.
...
Q: Have you ever seen any authoritative text published in any discipline of forensic science that's gone on record claiming that earprint identification is generally accepted in the forensic science community?
A: No, sir.

In his professional opinion, the latent print from McCann's door “is of poor quality,” shows only class characteristics, and shows nothing unique.

Tommy Moorefield testified that he was a fingerprint specialist with the FBI in Washington, D.C. He had worked for the FBI for 36 years as of December 1996. He had conducted advanced latent fingerprint courses throughout the United States, instructed new agents on collecting and preserving evidence, and worked on both the Waco disaster and the TWA Flight 800 disaster. He had once made an identification from a lip print, but he had never made an identification from an earprint. He was “not real sure” that ear print identification is generally accepted in the community of forensic scientists, and he was unaware of the FBI collecting any data on earprints.

William Stokes testified that he was a special agent and chief of all photographic operations for the FBI in Washington, D.C. He had identified individuals from photographs of their ears, but not from latent earprints. He had “no knowledge” of whether latent earprint identification is generally accepted by the scientific community.

Ralph Turbyfill testified that he is the long-time chief latent fingerprint examiner for the Arkansas State Crime Laboratory. He was able to identify a person from an earprint in one case, because of hair follicles that were peculiarly located. He had tried, unsuccessfully, to identify people from earprints in two other cases. He did not believe that earprint identification is generally accepted in the forensic science community, and he did not know of any publication or treatise that so claims.

Gary Siebenthal testified that he had been an officer with the Peoria, Illinois, police department for 23 years and a crime scene technician for 20 of those years. Although he had identified a defendant from an earprint on one occasion, he did not know of anyone who had “proclaim[ed] that earprint identification is generally accepted as reliable in the forensic science community.” Nor did he know of any scientific research on reliable techniques for making earprints or dealing with pressure distortion.

Paul Norkus was a long-time latent print analyst from Pensacola, Florida. He had been involved in the 1985 case, State v. Polite, in which Iannarelli had also been involved. Although he and Iannarelli thought they had made an earprint identification in that case, the trial court ruled that earprint identification was not generally accepted in the scientific community; thus, they were not allowed to testify. He did not believe that the FBI classifies or even keeps a file of earprints, and he had no “idea how often a given general ear shape occurs in the general population.” Except possibly for a 1949 article by a Russian author, he did not know of any publications stating “that earprint identification is generally accepted in the forensic science community[.]”

Ernest Hamm testified that he had been a crime laboratory analyst-supervisor in Jacksonville, Florida, for approximately 16 years. He had made an earprint identification in one case. He had been able to do that because the defendant “had a very peculiar mark in the lobe area of the ear.” Although he personally believed that earprints can be identified, he knew of nothing to indicate that earprint identification is generally accepted in the forensic science community.
William Sherlock testified that he had worked in law enforcement for more than 30 years. In part, he had trained others to identify tool marks. He had been involved in several earprint cases, but none had gone to trial and he had never testified on earprint identification. “The limited amount of people [he had] talked to ... don't really have an opinion” on whether earprint evidence is generally accepted as reliable in the forensic science community.

John Olenik testified that he had worked for the Ohio Bureau of Criminal Identification and Investigation for 27 years before starting his own business. He was a past president of the Ohio Identification Officers' Association and had published several articles. He had been involved in two earprint cases, neither of which had gone to trial, so he had never testified on earprints. Although he personally believed that earprints could be reliably compared, he did not know of any publications stating that earprint identification is generally accepted in the scientific community.

Roy Gourley testified that he was a detective from Sonoma County, California. Like Iannarelli, he had worked on the 1984 murder case of People v. Anzillotti. Because an earprint had been found in that case, he sought information on earprints from the FBI's latent print section in Washington D.C. He was told that the FBI had no experience with earprints and that he should contact Iannarelli. Iannarelli compared the latent print, found that it was the defendant's, and testified as a witness at trial--without objection from the defense. Gourley was not asked whether earprint identification evidence is generally accepted in the scientific community.

At the end of the hearing, the trial court entered written findings of fact and conclusions of law. It concluded that “the principle ... known as ‘individualization’ through the use of transparent overlay, applied to the comparison of the latent impression in the present case with the known standards of the defendant, is based upon principles and methods which are sufficiently established to have gained general acceptance in the relevant scientific community.” As a result, it admitted the earprint evidence.

Trial commenced on June 25, 1997. The State called Grubb and Van der Lugt, but not Iannarelli, to compare the latent print to the exemplars and to opine about the significance of the comparison. Grubb testified that the latent print showed “the antihelix, the interior portion of the ear; the helix rim, that is the top of the rim of the ear; tragus and antitragus, two portions of the ear down below;” that he had compared those anatomical features using transparencies; and that he had found “very good correspondence of those features.” He opined, to a reasonable degree of scientific certainty, that “Mr. Kunze's left ear and cheek [were] the likely source of this [ear print] impression at the [crime] scene.”

Van der Lugt testified that he also compared the latent earprint and the exemplars by using transparencies. He found “a few parts that correspond completely,” but also some “differences.” He believed that the differences were insignificant, because “[y]ou will never find ... a 100 percent fit” and “any dissimilarities” were caused “by pressure distortion.” Although he conceded that “no study has ever been published in the world that could tell the jury how much correspondence is actually required in order to declare a match,” he also opined:

Q: Mr. Van der Lugt, as a result of your comparison of the Grubb standards and your independent comparison of your own standards with the crime scene tracing earprint that was taken in this case, do you have an opinion as to the probability that the defendant's left ear is the source of the latent impression which was left at the scene of the crime in this case?
A: I do have an opinion, yes.
Q: What is your opinion, then?
A: I think it's probable that it's the defendant's ear is the one that was found on the scene.
...
Q: [H]ow confident are you of the opinion that you just expressed?
A: I'm 100 percent confident with that opinion.

Kunze was convicted of aggravated murder, burglary and robbery. He was sentenced to life without possibility of parole on the murder conviction, and to standard range sentences on the other convictions. This appeal timely followed.


I.


The main question on appeal is whether Grubb and Van der Lugt could properly opine, based on the similarities and differences that they observed in the overlays, that Kunze was the likely or probable maker of the latent print. Kunze says they could not, because they were relying on scientific, technical or specialized knowledge not generally accepted in the relevant scientific, technical or specialized community. The State says they could, either because they were not relying on scientific, technical or specialized knowledge, or because they were relying on scientific, technical or specialized knowledge that was generally accepted in the relevant scientific, technical or specialized community. We inquire (A) whether Grubb and Van der Lugt were relying on scientific, technical or specialized knowledge, and (B), if so, whether that knowledge was generally accepted in the relevant scientific, technical or specialized community.


A.


Grubb's and Van der Lugt's testimony was in opinion form. An opinion is admissible only if it has a rational basis, which is the same as to say that the opinion must be based on knowledge. The knowledge may be personal, or it may be scientific, technical or specialized. So- called “lay” opinion is simply opinion based on personal knowledge (i.e., on knowledge derived from the witness' own perceptions, and from which a reasonable lay person could rationally infer the subject matter of the offered opinion). So-called “expert” opinion is simply opinion based in whole or in part on scientific, technical or specialized knowledge. At least in some instances, there is no meaningful distinction between scientific knowledge on the one hand and technical or specialized knowledge on the other.

To comprehend how these rules apply here, we must understand that forensic science differs fundamentally from other kinds of science. As one writer has put it, “[f]orensic identification science has selected for itself--or had thrust upon it--a project that is unknown to other fields: the unique identification or, more properly, individualization of various objects, including persons....” Accordingly: The goal of individualization contrasts with conventional science of virtually every kind. “Individualization is unique to forensic science.” Normal science is concerned with grouping objects and events into meaningful classes, discovering systematic relationships among these classes, and developing and testing theoretical explanations for those shared attributes and relationships. While normal science looks only between classes, forensic identification science ... looks within classes. While normal science is concerned with establishing regularities, forensic science is concerned with exploiting irregularities ....

Because of this atypical goal, forensic science is dependent on the existence and identification of individualizing characteristics, as opposed to class characteristics. An individualizing characteristic is one that shows an object to be unique, or, in alternative terms, one that distinguishes the object from all other objects; it “may be a single feature viewed alone, or an ensemble of features viewed in combination.” A class characteristic merely “separate[s] a group of objects from a universe of diverse objects.”

A forensic scientist must respect this difference between individualizing and class characteristics when opining about the maker of a latent print. On the basis of class characteristics alone, a forensic scientist can say that a suspect “cannot be excluded” as the maker of a latent print, that the suspect “could have made” a latent print, or that a latent print is “consistent with” exemplars. On the basis of individualizing characteristics--and only on the basis of individualizing characteristics--a forensic scientist can say that a suspect made or probably made a latent print.

Here, Grubb and Van der Lugt claimed that Kunze probably made the latent print taken from McCann's door. As a result, they were necessarily claiming that they had found, and were relying on, at least one individualizing characteristic.

According to the record, Grubb or Van der Lugt lacked personal knowledge of any individualizing characteristic. They could not have observed an individualizing characteristic like a scar, tear, mole, or abnormal hair follicle, because the overlays did not show any such feature. They were able to observe the antitragus, tragus, helix, helix rim, and antihelix, insofar as shown in the latent print, but each of those features was a class characteristic, not an individualizing one. They were able to observe the relationship between the antitragus, tragus, helix, helix rim, and antihelix, insofar as it was shown in the latent print, but a lay person using common knowledge would have had no idea whether such relationship was an individualizing characteristic; to conclude that it was, Grubb and Van der Lugt necessarily had to be employing scientific, technical or specialized knowledge. We turn, then, to whether that knowledge was generally accepted in the relevant community.


B.


Washington follows Frye. Frye provides that novel scientific, technical or other specialized knowledge may be admitted or relied upon only if generally accepted as reliable by the relevant scientific, technical or specialized community. General acceptance may be found from testimony that asserts it, [FN76] from articles and publications, from widespread use in the community, or from the holdings of other courts. General acceptance may not be found “[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence.” When general acceptance is reasonably disputed, it must be shown, by a preponderance of the evidence, at a hearing held under ER 104(a). When general acceptance cannot be reasonably disputed, it may be judicially noticed in the same way as any other adjudicative fact. We review “de novo,” which means without deference.

In this case, twelve long-time members of the forensic science community stated or implied that latent earprint identification is not generally accepted in the forensic science community. Kerley, Moenssens, and Bonebrake expressly said it was not. Turbyfill said he believed it was not. Moorefield, Stokes, Siebenthal, Norkus, Hamm, Sherlock, and Olenik each testified to a lack of information or a lack of opinion--but if the forensic science community had generally accepted latent earprint identification, each of them surely would have known about it. Bonebrake, Moorefield, Stokes and Norkus testified that the FBI does not use latent earprint identification-- which the FBI would surely do if the forensic science community had generally accepted latent earprint identification. Even Iannarelli, perhaps the foremost American advocate of earprint identification, declined to assert that latent earprint identification has been generally accepted; he relied instead on his own personal belief.

Grubb asserted general acceptance, but not on tenable grounds. He reasoned, essentially, that latent earprints are a form of impression evidence; that other forms of impression evidence are generally accepted in the forensic science community; and thus that latent earprints must be generally accepted in the forensic science community. We reject his premise that latent earprints automatically have the same degree of acceptance and reliability as fingerprints, toolmarks, ballistics, handwriting, and other diverse forms of impression evidence.

Like Iannarelli, Van der Lugt may not have asserted general acceptance. Even assuming he did, however, his assertion cannot by itself show general acceptance by a preponderance of the evidence. As we noted above, general acceptance may not be found “[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence.” At the very least, this record shows such a dispute. Accordingly, we hold that latent earprint identification is not generally accepted in the forensic science community.

Nothing in our holding bars testimony at retrial concerning how the latent print was lifted, how the exemplars were taken, or how the overlays were prepared. As the State correctly argues in its brief, “[t]here is nothing novel or scientific about lifting or taking a print whether it be of an ear, a lip or a finger,” and nothing “novel or scientific about taking the print and putting it on an overlay.” Lifting prints and preparing overlays involves technical or other specialized knowledge, but that knowledge has been generally accepted for decades.

Nothing in our holding bars testimony at retrial concerning visible similarities and differences between the latent print and the exemplars. This type of comparison--an “eyeballing” of readily discernable similarities and differences--is based on “visual techniques” that “present jury questions,” or, in alternative terms, on personal knowledge that can readily be understood and evaluated by the jury. Thus, it need not be supported by a showing of general acceptance.

Finally, nothing in our holding bars testimony, based on an appropriate comparison of the latent print with the exemplars, that Kunze cannot be excluded as the maker of the latent print. An opinion of non-exclusion (e.g., that a particular person cannot be excluded as the maker of a latent print) can rationally be based on readily discernable class characteristics, but an opinion of inclusion (e.g., that a particular person made or probably made a latent print) cannot be.

In reaching our holding, we do not overlook the trial court's Finding 15, on which the State heavily relies. In that finding, the trial court stated that “the explanatory principle of ‘individualization,’ that any two items that have a common origin can be compared and an individualization accomplished if the items [are] of a quality that the individuality can be observed, is generally accepted in the branch of forensic science known as criminalistics.” This finding is immaterial here, where the question is whether latent earprint identification is generally accepted (or, in alternative terms, whether earprints in general, and the earprints in this case in particular, are “of a quality that the individuality can be observed”). We agree with and adopt the statements of a commentator who, after noting two generally held tenets–“that no two snowflakes are exactly the same,” and “that no two fingerprints have ever been found to have the same ridge positioning”--states as follows:

In some quarters, these tenets have been scooped up and extended into a single, all- encompassing, generalized principle of uniqueness, which states that “Nature never repeats itself.”
This principle is probably true, although it would not seem susceptible of rigorous proof. But the general principle cannot be substituted for a systematic and thorough investigation of a physical evidence category. One may posit that no two snowflakes are alike, but it does not immediately follow that no two shoe soles are alike, since snowflakes made in clouds and shoes are not. If no two shoe soles are alike, the basis for this uniqueness must rest on other grounds, and those grounds must be identified and enunciated.


We conclude that the trial court erred by allowing Grubb and Van der Lugt to testify that Kunze was the likely or probable maker of the latent, and that a new trial is therefore required.

II.
* * *
[The remaining two issues, not involving ear print identification, are omitted.]
Reversed and remanded for new trial.
HOUGHTON, J., and HUNT, J., concur.

Harold Levy...hlevy15@gmail.com;