This is a news item that has popped up many times over the past few days.  If the reporting is accurate then it is a classic example of how things can go wrong in a scientific investigation.

Associated Press

A fire investigation that led to the execution of a man in the deaths of his three young children was so seriously flawed that its conclusion of arson can’t be supported, a fire expert hired by the state said in a new report.

In a report to the Texas Forensic Science Commission released Tuesday, Craig Beyler said the fire investigation in Cameron Todd Willingham’s case didn’t adhere to the standards of care in place at the time, nor to current standards.  Beyler, chairman of the London-based International Association for Fire Safety Science, said in the report that the opinions of a state fire official in the case were “nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

The commission, created in 2005 to review forensic misconduct allegations, requested the independent analysis after the Innocence Project submitted claims of questionable evidence in the cases of Willingham and another man who was convicted in a similar case but was later released.  Commission Chairman Sam Bassett called Beyler’s report “a major step” in the panel’s review of both cases.  Before issuing its final report, the commission will seek responses from the State Fire Marshal’s Office and other parties, and will interview Beyler in October, Bassett said.  He said he expects the commission to release its report next spring.

Beyler said that in both cases, “The investigators had poor understandings of fire science … Their methodologies did not comport with the scientific method or the process of elimination.”  He said Manuel Vasquez, a deputy state fire marshal in the Willingham case, appeared “wholly without any realistic understanding of fires and how fire injuries are created.”  Beyler said witnesses contradicted Vasquez’s arson hypothesis and that Vasquez admitted he had not eliminated other possible causes.

Eric Ferrero, spokesman for the Innocence Project, said Beyler’s findings on the Willingham case “confirms what several experts have found over the last five years after reviewing thousands of pages of evidence.”  “Every expert who has looked at this case has determined there was no reason to call it arson,” he said.

Willingham, 36, was executed in 2004. He was convicted of setting the fire that killed 2-year-old Amber and 1-year-old twins Karmon and Kameron on Dec. 23, 1991, in their Corsicana home.  He told The Associated Press before his execution that he was innocent. “The most distressing thing is the state of Texas will kill an innocent man and doesn’t care they’re making a mistake,” he said.  Willingham’s cousin said she has never doubted her cousin’s innocence. Family members tried for years to free him.  “I would definitely like the state of Texas to take responsibility and admit in fact they wrongfully executed Todd Willingham,” she said. “Is that going to happen? Probably not. I’m not optimistic.”  Willingham’s stepmother, Eugenia Willingham, called the report another step in the “long, drawn-out process” of clearing his name.  “He lived 12 years on death row,” she said. “He went through hell, I’m telling you. It was probably worse than hell.”  She said her husband died in 2005, the year after his son’s execution, of prostate cancer and “a broken heart.”

Vasquez investigated the case with Douglas Fogg, the assistant Corsicana fire chief. The report said they cited burn patterns on the floor of the children’s room, hallway and porch, indicating an accelerant spill. Beyler said those determinations have no basis in modern fire science.

Ben Gonzalez, a spokesman for the Texas Department of Insurance, of which the State Fire Marshal’s Office is a part, said he had no comment on the report, saying officials there had not yet seen it. He said Vasquez died in 1994.

In the other case cited in the report, Ernest Ray Willis was convicted in 1987 in a fatal house fire in Iraan, but was freed after 17 years on death row when a federal judge ruled that authorities concealed evidence and needlessly drugged him during his trial.”

Having thought about my earlier post regarding court attendance, I now remember an interesting exchange with a senior judge at a conference once, which might explain why Legal Services is looking in the wrong place for savings in the UK court system.  The exchange went something like this:

Judge:  There is a real need to make savings at court for money spent on experts.  That is why the hourly rates are capped.  Experts spend far too much time wasting the court’s time and money by stringing out the amount of time they are at court.

Scientist: I  don’t think that’s a very fair comment.  An easy way to save money would be to make sure experts don’t attend court unless they have to.  I regularly attend court only to be told that my report was agreed the week before.  The court gets a full day’s bill because I’ve travelled across the country to get there just because no-one bothered to tell me I wasn’t needed.

Judge:  I don’t believe that ever happens.  When was the last time that happened?

Scientist:  Yesterday.

Judge:  I don’t believe that would happen.  If that sort of thing happens then you should go into to court to advise the judge or Magistrates of what has happened so that they can make sure it doesn’t happen again.  I don’t believe that ever happens [bluster bluster bluster - end of conversation].

Who has ever been to court and then been allowed to go into the court to tell the judge or Magistrates that they were called there unnecessarily?!  It’s just not going to happen.  This to me is a prime example of the judges believing that they know what goes on behind the scenes when in fact they know only what Counsel chooses to tell them.

I see from the UK press that the UK government is looking to cap Legal Services funding for expert witnesses by allowing a maximum monetary limit per day for attendance at court plus a maximum hourly rate for different forensic disciplines for report preparation and the like.  It seems to me that the general effect of this may be to regionalise forensic services provision in the independent sector – who can realistically afford to travel for four hours to get to court, attend for a full day because they’ve moved your case to the afternoon sitting and then spend another four hours getting home again if LSC is only going to pay a maximum of 490 quid a day?  Whilst that may be OK for areas where providers are thin on the ground it’s going to be tough for those in areas where there are several consultancies in one region (say, Cambridgeshire) providing the same sorts of services.  I imagine only the most business-minded company will survive (any suggestions for who might go down the tubes….?).

Here in New Zealand, Legal Services has yet to cap the hourly rate for experts but I think it may be coming.  Top QCs currently get paid about $100/hour less than expert witnesses so I can’t say I blame the lawyers for moaning about Legal Aid rates – they’re making a big stink about it at the moment.  This could have an impact on my business but I know I don’t have the highest charge-out rates around but I do know that there is a massive range in the hourly rate charged by expert witnesses.

Certainly from my experience in the UK there are many places where savings could be made without the need to cut anybody’s hourly rate.  Here is a typical day at court for a drink drive case:

Receive letter stating that my report has not been agreed by the Crown so my attendance at court is required.

Telephone the night before just to check that I am still required – yes.

Get up and drive off into the darkness at some hideous pre-dawn hour to get to court by 9.30am, as requested.

Find court doors locked.

Wait til 9.45 for a clerk to arrive and open the doors.

Wait til 10am for someone involved in my case to turn up; it’s the prosecutor, who gives me a funny look as if to say “what’re you doing here?”.

Wait til 10.15am to be told that the case isn’t listed to start until 11.30am.

Be approached by my instructing barrister at 11.15am who advises me that my report was accepted by the Crown last Tuesday so I shouldn’t have been advised by the solicitor to attend today.  He’s not sure whether my fees will be met by the court because in theory the court didn’t require me to attend.

Get back to the faceless car park, drive a long way home, probably along the A14, get home at 6.00pm.

Send invoice to the court that doesn’t get paid because apparently I wasn’t required to attend.  Several months of arguments about payment pass by…..

There are several variations on this general theme, one of which involves two experts attending, one for each side.  Neither knew an expert was involved for the other side.  Neither has seen the other’s report.  Both agree the other’s report.  One prepares a hand-written section 10 agreement, which they both sign.  Both leave court having contributed nothing to the case except to slow down the court for the day.  The court receives two bills for experts, neither of whom needed to attend in the first place had the legal administration been working properly.

Does anyone ever ask what we experts think?  Sometimes, but I don’t think anyone listens….

During my time in England I had the pleasure of being involved with many cases involving drug traces on banknotes.  For those of you in countries with plastic money (such as NZ or Australia), those who live in countries with paper money have the joy of carrying around with them banknotes of which practically all will bear minute traces of cocaine.  At the last look, 70% had traces of MDMA (Ecstasy), 5% had traces of diamorphine (heroin) and 5% had traces of THC (found in cannabis).  Banknotes are seized in a variety of cases including criminal cases, Customs & Excise and under the Proceeds of Crime Act.  Some nice people at the lab will analysis a selection of banknotes (in a non-destructive manner – not that that matters if the Defendant is found guilty because they won’t be seeing their cash again).  Sometimes, those nice people at the lab will travel to court to give evidence about what they found.  Sometimes, someone like me might go along as well to add comment for the Defence.

Anyway, this story is another about court attendance, this time where I was involved as a Defence expert for a case in Scotland.  I only went because my boss was on holiday somewhere exotic (again) and he couldn’t make it, so I had to go.  After getting stuck on the M1 on the way to Luton airport (pouring rain, stationary traffic for an hour) I missed my flight to Aberdeen.  Had to get on the next flight, which was to Edinburgh.  Happily, the barrister was in Edinburgh so he picked me up at the airport and we drove to Aberdeen.  I have no idea how long it took except it seemed a loooong time in a car with someone I had never met before.  In fact, I had never even spoken to him before.  This is the sort of thing that your mother warns you not to do.

I spent five days in Scotland.  It snowed and there was no heating  in the hotel.  I had no thermals with me.  There was porridge for breakfast though, which was good (no other meals necessary for the rest of the day).  The Crown’s scientists came and went.  I stayed (just in case I was needed, but I wasn’t).  The Crown wanted to show the tape of the Police interview but no-one knew how to work the video player.  Rather than allow us to try to work it out for ourselves, court was adjourned for half a DAY so that a technician could drive from Aberdeen to “fix” it (only a Certified Technician was allowed to touch it – against Health & Safety rules otherwise).  Technician arrives, presses a switch, VCR starts to work, we all get back to the trial wondering why a) Health & Safety rules had got so mad, and b) why the Technician couldn’t have told us over the phone which button to press.

There were many other things about that case that were bizarre (the defendant was found guilty; defendant went to prison; case was appealed; defendant was released).  Another bizarre incident involved a mobile phone (no, not one that had been swabbed for the presence of drug traces).  A mobile phone rang (very quietly, I might add).  The Judge stopped the proceedings and demanded that the offender place at least a pound, but preferably a banknote of some denomination, into the charity jar he kept on the Bench.  I leaned over to the solicitor and commented that this was indeed a strange occurrence.  He leaned back and said “Well, it’s just as well we’re not in the court room next door – the judge in there puts people in the cells for an hour if a phone goes off in his court, even if you’re a QC.”  I believe him.

Forensic science always seems so glamorous on the TV.  I love my job but sometimes I have to wonder why I do it because it is so far from CSI.  I gave a talk to the Auckland Executive Club last week and I put up a photo of some fragments of cannabis resin, to provide an example of the sort of casework I have done.  As I looked at it, the memory of that case came rushing towards me and I remembered how hideous it was.

The case itself wasn’t difficult:  the defendant was claiming that the weight of cannabis resin reported by the Police was incorrect – he said it was less than reported.  I had to go to the forensic science laboratory, examine the resin, weigh it and confirm that it was correctly reported.  The resin had started off as a whole block and was described as such by the Crown scientist, although she had commented that it was quite dry and friable.  However, after it had been driven 300 miles back to the Police station and then back to the lab for my examination, it had broken into pieces.  Not a problem – all part of the job.  I spent a happy few hours trying to piece the bits together to confirm that the cannabis was, indeed, the same as that described by the arresting officer and the Crown scientist.  Once I established that, in fact, no-one had pinched any of it or added any to it, I went on my merry way, back to the office to write the report and post it to the solicitors.

So, what was the rushing bad memory that swept over me when I was giving my presentation last week?  The court appearance, that’s what.    Travelling to and from court in the UK used to be quite nice – a bit of a jolly, out from the office for extremely legitimate reasons, sometimes a nice, short day if the Hearing is within an hour’s drive of home and is heard in the morning.  Always unpredictable though.  I had checked with the instructing solicitor the day before that I was needed and he confirmed that yes, I would be required to attend.  

I had to leave home in East Anglia at 5.00am to get to Swansea Crown Court in Wales by 9.30am.  Crappy weather, raining and cold.  Decisions, decisions: go up around Birmingham or down the M25 round London.  Decide for the latter but get stuck in two traffic hour jam on M4 near Reading.  Small glimmer of pleasure when hear on radio that there is a 10 mile tailback on the M6 approaching Birmingham so it wouldn’t have mattered which way I went.  By this time, Chris Moyles’ Breakfast Show has finished, which meant two things: 1.  it’s 9.00am and I’m not even in Wales yet; 2.  there’s no decent radio program on for at least another hour.  Car fire on M4 motorway just outside Cardiff – delay for 45 minutes (possibly a potential new client, I thought, if his insurance company uses us).  By now it’s 9.15am.  Telephone solicitor to advise I’m running late (won’t get a ticket from cops because car is stationary, handbrake on, and they are all at the car fire up ahead anyway).  Advise solicitor that I will be there in time for court starting at 10am.  However, I have woefully underestimated the distance between Cardiff and Swansea.  Eventually arrive in Swansea at 11.00am but cannot find the court.  When I eventually do find it, tucked behind some trees with no road signage, there’s nowhere to park (despite the solicitor advising me yesterday that there is loads of parking and no, I won’t need any change for a parking meter). 

I roll into court with cramp in my legs having spent 6 and a half hours driving across the country in the pouring rain and what does the barrister say when I get there?  “Who are you?”  I explain.  “Oh, your report was agreed by the Prosecution yesterday.  You really should have rung to check that you were required, my client changed his plea to guilty last night.  I’m not sure whether the court will agree to pay your fees.”  Strangely enough, the instructing solicitor, who I had rung  whilst I was ON MY WAY TO COURT wasn’t actually at court, even though he told me he was.

So, what did I do?  What could I do?  I got back in my car, turned round and took five hours to get home, swearing most of the way, still trying to find something decent to listen on the radio, got stuck in the rubber-neckers traffic going past the car fire in the opposite direction because let’s face it, it was a big fire and I’d only gone past it 40 minutes previously.  Total of my day:  10 and a half hours driving in English winter weather, five minutes at court (including three using the bathroom), no court appearance, more time ‘at work’ than on a normal day.  To this day, I wonder if the solicitor was ever actually at court that day and if he was, whether he hid when I arrived because he should have told me not to come.  Or whether he got me mixed up with another case he was doing that day. 

Anyway, that’s why I had a bad case of memory wash last week.  One thing’s for sure though: I don’t have to drive from East Anglia to Swansea Crown Court any more…..