Tuesday, March 2, 2021

Tomas Yebes: British Columbia: Faulty 'arson' investigation: Enough to make one weep: It took almost 40 decades before the courts - thanks to the efforts of the University of British Columbia Innocence Project team declared him innocent in the murder of his two sons. Reporter Jane G. Pruden does an excellent job of explaining where the convictions - attributed by one news story to "scientific sleuthing by a pathologist and a fire marshal " went wrong.

PUBLISHER'S NOTE: This  lengthy article is well worth the read in its entirety. It can be accessed at the Globe site  through the link below by taking out a free 30 day prescription - no credit card required.

Harold Levy: Publisher: The Charles Smith Blog.


PASSAGE OF THE DAY:  "By the time the UBC Innocence Project took on the Yebes case in 2010, faulty fire  investigation had been identified in numerous wrongful convictions in the United States, including that of Cameron Todd Willingham, who was executed after being convicted of murder in a fire that killed his three children in Texas in 1991. In that case and others, the conclusions of fire investigators had been exposed as extremely unreliable, often proffered by firefighters with very limited training in the science and, in many cases, confidently testifying to conclusions that were far less certain than they appeared. With that in mind, the lawyers reviewing the Yebes case knew the conclusion that an accelerant had been used to start the fire on Holly Park Lane would have to be re-examined using modern fire science."


STORY: "Tomas Yebes said he didn't kill his two sons. Nearly four decades later, the courts finally agree," by Reporter Jane G. Pruden, published by The Globe and Mail on Feb. 20, 2021. (Jane Pruden is a crime and justice  feature writer for the Globe and Mail0.

SUB-HEADING: "His conviction in 1983 would become most cited-cases in Canadian law."

GIST: "The smell of smoke woke him, so faint at first it seemed like a dream.

Tomas Yebes had been listening to music in bed – earphones on, cord snaking to the stereo system downstairs – but when he awoke, the cassette had ended, and it was quiet. He was confused at first. Was the smoke coming from his pipe? The toaster? Downstairs, an acrid brown-grey haze was emanating from the small utility room where one of his sons had been sleeping. Tomas opened the door to find both boys there, lying still on the bed even as flames licked around them. He pulled Tommy out first, fire blistering his hands and feet as he dragged the small, stiff body from the room. He tossed pans of water onto the child, though it was already far too late. He didn’t touch the older boy, Gabriel. It was clear he was already gone. It was Feb. 24, 1982, a Wednesday, just after 1 a.m. in Surrey, B.C. Police and firefighters arrived at the townhouse at 10570 Holly Park Lane in minutes, spraying the smouldering mattress first with fire extinguishers, then pulling it onto the balcony and tossing it to the ground, dousing it with water until it finally stopped smoking. Tomas was on the phone with his wife, speaking in what officers and firefighters would recall as a “foreign language.” “The boys are dead,” he was saying, in Spanish. “They’re gone.” He was, depending on whose impression was accurate and what moment they were describing, either completely distraught or totally emotionless. One officer described him as agitated and crying, while another said he was calm and “fairly detached from the situation.” Firefighter Wendell Dicks thought Tomas seemed emotionally “kind of cool,” and firefighter Gerald Wilson would later recall how he didn’t look at the boys, how he didn’t cry for them. It appeared to be a terrible accident. As the Vancouver Sun reported the next day, police believed the boys succumbed to smoke inhalation “after apparently starting a fire in their mattress with a lighter.” It made sense. A silver butane lighter was found open on the floor in the room, and the boys had a history of playing with fire. Just weeks earlier, Tomas had been awakened in the middle of the night as they cried, “Fire! Daddy, fire!” and he ran into their room to find one of their bedspreads burning. “Somebody was here,” Gabriel told him then. “Somebody was looking at me. Somebody was looking at Tommy.” Tomas believed it at first. He grabbed a stick and ran through the house searching for an intruder, but found no one. He phoned the police in a panic, scared and struggling to get the words out in English. “Can this hand to someone please, someone tried to burn out my inside my apartment,” he said. But the officer who came to the townhouse found no sign anyone else had been inside. The officer saw matches and a candle on a plate near the boys’ bed. When the boys told Tomas a monster had been there, he understood they’d set the fire. Tommy was six years old, Gabriel seven. A few days later, Tomas separated them, moving Gabriel to sleep in a tiny utility room downstairs. It was to be temporary, only for a few days until Gabriel stopped scaring his brother with talk of monsters and strangers, keeping Tommy awake late into the night. Tomas and his wife, Elvira, met with Sergeant Gerald Tilley, the head of the major crimes section, in the officer’s glass-walled office at the RCMP building in Surrey on Feb. 25, 1982, the day after the fire. Elvira answered most of the officer’s questions while Tomas sat beside her, in tears. They talked about their family, about their struggles leading up to the fire. Tomas’s hands were burned and bandaged. He spoke quietly when he spoke at all. The officer was sympathetic and understanding at first, but toward the end of the interview, the tenor of his questions changed. He told Tomas and Elvira no carbon had been found in the children’s tracheas and bronchial tubes, as would be expected if they had inhaled smoke from the fire. He made his message clear: He believed the boys were dead before the fire started. Tomas had been increasingly upset during the interview, and at this, he was overcome. He curled up on the chesterfield in the office, pale and sweating, racked with sobs. Sgt. Tilley asked Elvira to leave the room, so he could speak to Tomas alone. “Did you put a pillow over the boy’s head?” he asked. Tomas lay stricken, growing so distressed eventually the officer thought it was best to call an ambulance, and Tomas was taken to the hospital. A month later, police charged him with two counts of first-degree murder.


Testifying in his own defence, Tomas swore he did not hurt or kill the boys. But the evidence, it seemed, was clear. And damning. Fire Inspector William Coleman testified a rolled-up piece of fabric had been found underneath Gabriel’s body, one end burned in what he described as “a wick.” Fire Marshall Thomas Hardman, a former firefighter whose investigation included recreating the scene using pieces of chimney pipe in place of the children’s bodies, testified with certainty that an accelerant had been used to start the blaze. William Cave, the pathologist who performed autopsies on the children, said he didn’t find burning in the boys’ mouths, throats, lungs or airways, as he should have if they were breathing when the fire began. He said the undigested food in their stomachs further indicated they likely died hours before Tomas reported the fire. “I feel certain that these boys were not alive at the time of the fire,” he said. Wayne Jeffery, a toxicologist with the RCMP’s crime-detection laboratory, echoed the findings, on the basis that he didn’t find measurable carbon monoxide in samples taken from the boys’ bodies. He repeated his conclusion firmly twice under cross-examination. “They did not die in the fire.” Though there were none of the signs typically seen in smothering or strangulation murders, the experts’ certainty that the children were dead before the fire and that an accelerant had been used to set the blaze was almost impossible to overcome. The trial lasted two weeks. Jurors received their instructions on the morning of Sept. 13, 1983, and returned the verdict late that night: Guilty of two counts of second-degree murder.


Unlike some wrongful conviction cases, Tomas had a competent defence, and good lawyers representing him at trial. Both his lawyers would go on to be a Supreme Court justices in B.C. But while the defence urged caution with all aspects of the expert evidence – “what the scientists know in any given moment of research is constantly changing,” defence lawyer David Crossin noted in his closing address – the argument was largely predicated on the idea that someone else had committed the murders, and that Tomas was innocent because police had charged the wrong person. The appeals of the conviction had been similarly focused primarily on the idea Tomas should not have been found guilty of the murders because someone else could have committed them. But, as Mr. Sorochan, Ms. Sandford and Mr. Fowler reviewed the case, they realized that – outside expert testimony that the boys were dead before the fire and that the blaze was arson – there was actually nothing to say a crime had even occurred. “In most murder cases, there’s compelling evidence of a crime,” Mr. Fowler says. “Somebody’s got a stab wound to the heart, somebody’s got a bullet in the head, those are murder cases. There’s no doubt there’s a murder. It’s all then about who did it, and what was their state of mind.” But with the Yebes case, there was no such evidence. Everything rested on the expert testimony. As the lawyers began re-examining the case three decades later, they were struck by a staggering question: What if the children’s deaths weren’t murders at all?.


The room was small, six feet by four, more like a utility closet than a bedroom. Gabriel was to be sleeping there only temporarily, and it was intentionally spare, an incentive for him to stop keeping his little brother awake with monster stories so he could move back into their bunk bed in the big room upstairs. There was a mattress on the floor, a water heater, nothing else. By the time the UBC Innocence Project took on the Yebes case in 2010, faulty fire investigation had been identified in numerous wrongful convictions in the United States, including that of Cameron Todd Willingham, who was executed after being convicted of murder in a fire that killed his three children in Texas in 1991. In that case and others, the conclusions of fire investigators had been exposed as extremely unreliable, often proffered by firefighters with very limited training in the science and, in many cases, confidently testifying to conclusions that were far less certain than they appeared. With that in mind, the lawyers reviewing the Yebes case knew the conclusion that an accelerant had been used to start the fire on Holly Park Lane would have to be re-examined using modern fire science. The scene of the fire was also particularly unusual. The small utility room was not the kind of space typically considered in studies of residential fires, and the lawyers wondered how the size of the room and the presence of the water heater may have affected the blaze. Another factor was that Gabriel’s mattress was made from kapok, a vegetable material so combustible it can burn underwater. The lawyers learned kapok was prone to “flameless combustion,” where it can smoulder for hours, incinerating itself without ever becoming fully enflamed. Because kapok depletes oxygen, it is highly dangerous in enclosed spaces, and ships have protocols for entering spaces with large amounts present. As Mr. Sorochan had learned through earlier work with prison fires and workplace fatalities in manholes, oxygen deprivation can be an undetectable and even unprovable form of death, yielding autopsy results so vague they are essentially meaningless. Using stomach contents to establish a time of death was already shaky science in the 1980s, and through the years had only become less legitimate. There were serious questions about both how and when the boys died. It struck the lawyers that investigators originally thought the fire was an accident, and that initial impression was still the one that made the most sense. There were no signs of struggle or violence, none of the injuries usually seen in smothering or strangling deaths. The children had a recent history of playing with fire, and there was nothing to explain why Tomas would suddenly commit such an horrific act. Each of the pieces of evidence used by the experts to prove murder was questionable. Everything else pointed to a horrible accident. So how did the deaths come to be considered a crime? One news story during the trial attributed it to “scientific sleuthing by a pathologist and a fire marshal.” But when the lawyers retained new fire scientists to review the evidence, it became clear that scientific sleuthing had been devastatingly wrong.


By the early months of 2019, the UBC Innocence Project team was finally ready to make its case, and the lawyers submitted an application for ministerial review. It had been a long road to that point, each aspect of the case requiring significant time and effort to fully investigate and consider, every report and inquiry stretching months and even years. On Nov. 5, 2020, an order came down from the Minister of Justice and Attorney-General. After reviewing the application, Minister David Lametti had determined there was a “reasonable basis to conclude that a miscarriage of justice likely occurred in this matter.” He ordered a new trial. It was set for the following week.


It was the same courthouse where Tomas had been tried and convicted of murder. He had been 40 years old then, young and strong. Now he was 77, and in a wheelchair. In the years since the UBC Innocence Project took on his case, Tomas had suffered serious health problems, including a stroke that left him unable to walk, and with difficulty speaking. But as the clerk read aloud the two murder charges against him, his voice was as firm and strong as it had ever been. Clear and unwavering. “Not guilty,” he said, to the first charge. “Not guilty,” he said, to the second. Marilyn Sandford addressed the court. She said three independent forensic reports commissioned by the UBC Innocence Project team had exposed critical flaws with the expert evidence at trial. Using contemporary fire science, the new reports upended everything that had been used to convict Tomas of murder. They concluded there was no evidence an accelerant was used, and that the lighter found in the room could have started the fire. The reports said the kapok mattress could have smouldered for hours without becoming fully inflamed, and that the children could have died shortly after it began to burn. “While the jury was told by the experts in 1983 that, in effect, science proved a crime had occurred, the present state of forensic science provides an entirely different picture of the circumstances,” Ms. Sandford told the court. Three more forensic reports commissioned by the Crown had reached the same conclusions. The Crown called no evidence, and the judge declared Tomas Yebes not-guilty of both murder charges. The proceedings lasted 20 minutes. It was 37 years and two months after his conviction. The case was over."

The entire story  can be read at: 


PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;