GIST: "New evidence the Virginia Attorney General's Office has characterized as compelling could prove that a fatal Augusta County fire did not happen the way a jury was told it did more than two decades ago.
That jury convicted Michael Leroy Ledford, 44, of arson and murder in the Oct. 10, 1999, blaze that asphyxiated his son, Zachary, hours after his 1st birthday party. Ledford is asking the Virginia Court of Appeals to grant a writ of actual innocence to clear his name and free him from a 50-year prison sentence.
His lawyers contend that scientific fire testing proves that the fire did not happen the way that Ledford, who is said to have a cognitive impairment, stated it did in a false, "coerced" confession. A timeline of events that night and expert opinions also prove he could not have set the fire by other means, they said.
A state arson investigator changed his initial conclusions about the fire to fit the confession made weeks later, argue Ledford's lawyers with Baker Botts LLP and the Mid-Atlantic Innocence Project in their petition to the appeals court.
"Ledford confessed to something that did not happen," his petition asserts.
The case shares similarities with - and has been likened by some experts to - the high-profile case of Cameron Todd Willingham, a Texas man executed for the 1999 arson deaths of his three daughters that numerous fire experts later concluded was not an arson.
Willingham's behavior around the time of the fire and afterward, like Ledford's, was seen as suspicious. Unlike Ledford, however, Willingham did not confess.
Authorities in Augusta remain adamant that overwhelming evidence shows that Ledford is guilty, despite any fire test results.
And the Virginia Attorney General's Office, in its 67-page response to the petition, concluded, "Considered against the entire record, Ledford's assertion that his convictions were the result of a false confession as established by new testing is not supported by the evidence."
Nevertheless, the attorney general's office also told the appeals court that the fire test report, and the opinions of experts based in part on the report, "are compelling."
"This evidence reflects that it is highly unlikely that the fire in Ledford's case ignited in the seat of the chair, as was believed based upon Ledford's second interview and statement," the office wrote in its response.
The attorney general added that the evidence "may support a finding that Ledford was innocent of the arson and murder."
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Photographs of the damage caused in seven test fires conducted by experts in 2016 clearly indicate that the fire did not begin the way Ledford claimed. Instead, the test fires - in conditions replicating the 1999 apartment - reflect the kind of damage that would be expected if the fire started the way the state police first said it did.
The attorney general's office is asking the appeals court for a hearing on whether that new evidence can be considered by the court under the state's writ of actual innocence law.
In many states, evidence of innocence discovered years after a case is over can be taken back to the same court where the conviction occurred for consideration and possibly exoneration.
But not in Virginia where, for the most part, new evidence of innocence can be brought to the court's attention only within 21 days of a conviction becoming final. The purpose of the rule, one of the toughest in the country, is to provide finality to convictions.
Virginia has two exceptions to the 21-day rule in which people can seek writs of actual innocence. One involves biological (DNA) evidence and is considered by the Virginia Supreme Court.
Innocence claims such as Ledford's, which do not involve biological evidence, are handled by the Virginia Court of Appeals under a law enacted in 2004.
The law requires that such evidence could not have been discovered by available scientific testing at the time of his trial and that the evidence be "new," and not merely cumulative. The attorney general's office is asking the appeals court for a hearing to determine if the new evidence in Ledford's case meets those requirements.
Of the several hundred nonbiological writ petitions filed since the law was passed, fewer than a half-dozen have been granted, and most of those were cases where the attorney general agreed a writ of actual innocence was warranted.
Ledford lost a bid for a writ of actual innocence in the appeals court in 2006. Last year, the law was modified, permitting Ledford a second chance and the opportunity to introduce the 2016 testing.
The standard of proof required to win a writ was also lowered last year. Petitioners had been required to show by new, clear and convincing evidence that no rational trier of fact would have found guilt beyond a reasonable doubt. The new change requires they prove only by a "preponderance" of the evidence that no trier fact would have convicted beyond a reasonable doubt.
Ledford's lawyers and the attorney general's office declined to comment for this story beyond their court filings. In 2012, A. Lee Ervin, the former Augusta commonwealth's attorney who prosecuted Ledford, told the Richmond Times-Dispatch that he had no doubt about Ledford's guilt.
Timothy Martin, who defeated Ervin for the commonwealth's attorney job in 2015, said that last year, he carefully reviewed the test results and other material sent to him by Ledford's lawyers as well as his own office's file on the case.
Martin said that if an innocent person from his jurisdiction was sent to prison, "I want to be part of that exoneration, and I want to help."
"In this case, I had the opportunity to do that without any blow to my ego," Martin said. "The guy that I defeated in a really contested election - he's the guy that prosecuted it. So I was as neutral or as primed to believe the petition as I'm ever going to be," he said.
Martin said he did not look at the case from the viewpoint of whether he could successfully prosecute it today. "This is really about whether I think Ledford is factually innocent, and I definitively do not think he is innocent. I definitively believe him to be guilty."
"But, hey, I could be wrong," he said. "If this guy is innocent, which I just don't believe is likely in any rational world, then he is the single unluckiest guy in the world.
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The fire started on Oct. 10, 1999, a few hours after Ledford and his then-wife, Elise, celebrated Zachary's 1st birthday in their two-bedroom apartment. Elise put the boy to sleep, and she went to sleep around 8 p.m.
Ledford left the apartment to run errands and to stop by a firehouse where he was a volunteer firefighter. According to trial testimony as recounted in Ledford's petition, he was heard leaving the apartment by a neighbor at roughly 8:26 p.m. and seen at a gas station at 8:35 p.m.
At about 8:45 p.m., a neighbor saw both Elise and flames in the apartment living room. Two calls were made to 911 at 8:47 p.m. and firefighters were sent at 8:50 p.m. At 8:56 p.m., firefighters and Ledford arrived at the apartment at the same time, says the petition.
The fire was largely contained to an area surrounding an upholstered lounge chair near the front door. Zachary died; Elise was severely burned but lived.
Ledford's writ petition states that a state police arson investigator first classified the cause of the fire, which largely burned itself out, as "undetermined" and that it started at the base of the chair and a couch next to the chair.
Ledford was questioned about the fire on Nov. 10, 1999, and given lie detector tests. For 3½ hours of a four-hour interrogation, Ledford repeatedly denied he had anything to do with the fire.
His current lawyers said faulty interrogation techniques were used and that Ledford was told a number of lies during questioning, including that he had failed the polygraph examination (the results were inconclusive); that there was an eyewitness who could place him at the apartment at the time the fire started; and that there was forensic evidence implicating him.
A video recording of the questioning shows an investigator - later two of them - patiently and often sympathetically attempting to get Ledford to confess, one of them persistently telling him that he had a psychological problem and needed help.
After nearly four hours, Ledford said:
"After Elise went to bed, I turned the light on in the living room, and told her that I would blow out the candles. I blew out the one, made sure that Zachary's door was closed, that way he wouldn't get hurt. I even made sure that our bedroom door was closed. I made sure the candle was lit, I threw it in the chair. I thought to myself no big deal, extinguish the fire, put Elise and Zachary in my arms, and I could start fresh. I honestly did not intend to kill my son. If I would have known for the least second that Elise would have opened up his bedroom door, I never would have done it. I was expecting a quick response, like we always had for structure fires. Go in, put the fire out. Do the investigation, and everything's back to normal. I will admit I do have a problem."
Ledford later retracted his confession.
After Ledford confessed, the state police investigator changed his report, concluding that the cause of the fire was "incendiary" and not undetermined.
According to doctors, Ledford is "in the autistic spectrum or [has] a severe non-verbal learning disorder," and he "confessed after hours of coercive interrogation," alleges Ledford's petition.
The innocence project says two-thirds of DNA exonerations in homicide cases involved people who made false confessions or incriminating statements. "Ledford was convicted almost entirely on his confession and investigators' reports adopting that confession," according to Ledford's petition.
The attorney general's office concedes that the state arson investigator said the cause of the fire was undetermined in an Oct. 20, 1999, report. He changed his conclusions, saying the fire started in the chair and was incendiary because he learned more about the fire from Ledford's confession.
An insurance company fire investigator also found that the fire started in the chair, was incendiary and was consistent with a candle being thrown on it, although he did not find any sign of a candle.
Both investigators testified that, as a result of their on-scene investigation of the fire, they had been unable to determine the cause and that they reached their conclusions as a result of Ledford's confession.
A defense fire expert testified during Ledford's 2000 trial that the apartment fire was not consistent with a fire started by a candle on the seat of the chair and that it could have burned for only up to four or five minutes. It would not have been possible for Ledford to have set it because it was not seen until 20 minutes after Ledford had left the apartment, his lawyers say.
The expert also testified that a nearby lamp had not been properly excluded as the source of the fire and that the fire had started behind and at the bottom of the chair as the state police investigator initially concluded.
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In addition to his confession, evidence against Ledford in his trial included three life insurance policies worth a total of $75,000 on his wife and child. Ledford would have been the beneficiary of $50,000 worth of the polices. It was also a troubled marriage, and Ledford made suspicious statements following the fire.
Two witnesses said they heard Ledford say he was buying a car with some of the money.
A friend of the family testified that she and Ledford visited his severely burned wife at the University of Virginia hospital. The witness said Ledford did not ask that life support be removed, but asked what would happen if his wife was taken off the respirator. The doctor said she would die.
The jury convicted Ledford in a five-day trial in 2000, and he was sentenced to a total of 50 years in prison in 2001.
His current lawyers hired two experts, R. Paul Bieber and Wayne Chapdelaine, certified fire and explosion investigators. Walter R. Newell, a certified fire examiner, worked for free on Ledford's case, "because he was so troubled by the fire investigation that was conducted," according to the lawyers.
Bieber and Chapdelaine conducted test fires at the Nova Scotia Firefighters School, duplicating as closely as possible the furniture and apartment where the Augusta fire occurred.
Three of the burns were started behind and at the base of the chair, where the state police initially believed it started. Three other fires were started on the seat of the chair, as would have happened had Ledford tossed a candle on it.
The fires were allowed to burn until the damage to the chair was roughly the equivalent to the 1999 fire scene.
Their findings, Ledford's petition says, are "entirely and conclusively consistent with a fire originating at the floor level behind the ... chair." In addition, the experts concluded that based on the known timelines of events that night, the fire did not last long enough for Ledford to have started it.
"Newell concluded that the only credible theory of the fire was [the] original one, which had nothing to do with Ledford," the petition states.
Among other things, the attorney general's office told the appeals court in response to Ledford's petition that the state police reviewed the 1999 investigation in April and stand by it. The reviewers included two certified fire investigators.
The office also contends that Ledford's petition does not show police used coercive interrogation techniques or that Ledford's "unspecified psychological impairments" make the confession unreliable. There was evidence corroborating the confession and, at best, Ledford's petition only raises the possibility of a false confession.
In asking for an evidentiary hearing, the attorney general's office said it is unclear if such testing could have been conducted at the time of Ledford's trial and, in light of testimony from Ledford's trial expert, whether the evidence is new or merely cumulative.
Martin, the Augusta commonwealth's attorney, handled arson cases when he was an assistant prosecutor in Richmond and is not persuaded by the fire testing.
"I am not convinced that arson science is perfect," he said. "This notion that in [1999] those guys were wrong - I can buy into that potentially, right? Maybe it wouldn't have burned exactly as those guys would have expected. I can believe that."
But Martin said he also does not believe "that in 2020, suddenly we know all that there is to know about this."
Ledford's brief supporting his petition contends the test results are not merely cumulative. The testing and other evidence are all that is needed to show that no judge or jury would have found him guilty beyond a reasonable doubt.
"The scientific testing presented in this petition proves that Ledford is factually innocent," his lawyers wrote. "Ledford never threw a lighted candle onto a chair. He never started a fire. He did not injure his wife or kill his son. His confession was false, the product of police coercion and his own cognitive defects," the petition concludes.
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