UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA
v.
JAMES HEBSHIE
)
)
)
)
)
Cr. No. 02-10185-NG
DEFENDANT’S POST-HEARING MEMORANDUM
IN SUPPORT OF 2255 PETITION
Defendant James G. Hebshie hereby supplements his submissions in support of his 2255
petition to vacate his conviction and his Rule 33 motion for new trial. Hebshie refers the Court
to his memorandum in support of his 2255 petition, filed on June 16, 2009 (Document 137), and
his reply memorandum, filed on October 16, 2009 (Document 147).
I.
Introduction
On April 15, 2010, the Court issued an order setting the case down for an evidentiary
hearing. The Court instructed as follows:
Specifically, the Court assumes that evidence and argument will
focus on two points: First, whether trial counsel for the defendant
was ineffective in failing to request a Daubert hearing, Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), on two
types of evidence: (I) the cause-and-origin investigation testimony
of Lieutenant Todd Myers, Sergeant David Domingos and Wayne
Michael Miller; and (ii) the canine evidence presented by Sergeant
Douglas Lynch. Second, whether trial counsel's rebuttal to expert
testimony was so deficient as to render his representation
ineffective.
An evidentiary hearing was held over four days, on June 23, July 9, July 23, and July 27,
2010. The defendant called John Lentini, a pre-eminent expert on arson science and cause-andorigin determinations; trial counsel John T. and John S. Spinale; defendant’s cause-and-origin
expert at trial John J. Titus, a fire protection engineer; attorney Peter Muse, who had represented
the defendant from November 2004 to March 2005; Daniel Cronin, principal of Phoenix
Investigations, the building owner’s insurer’s cause-and-origin investigator; and Professor Jane
Campbell Moriarty, University of Akron Law School. The government called two witnesses,
Mass. State Police Sgt. David Domingos, who had testified at trial with respect to the cause and
origin, and ATF Special Agent Michael Marquardt.
The proposed findings and rulings herein focus on the Daubert-Rule 403 issues addressed
in the evidentiary hearing. By limiting the proposed findings as indicated, Hebshie does not
waive his contentions that counsel was ineffective in failing to object to the evidence of the
firefighter’s heart attack and to the erroneous jury instruction on mail fraud, and that there is a
reasonable likelihood that the outcome of the proceeding was affected by those errors.
II.
Proposed Findings of Fact1 and Rulings of Law
A.
The Applicable Standards: Strickland and Daubert
1.
Strickland: The Test for Ineffective Assistance of Counsel
In order to show that the defendant was deprived of effective assistance of counsel as
guaranteed by the Sixth Amendment, the defendant must establish both that counsel’s
performance was deficient and that he was prejudiced as a result. Strickland v. Washington,
466 U.S. 668 (1984); Peralta v. United States, 597 F.3d 74, 79-80 (1st Cir. 2010).
First, the defendant must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
1
To the extent that the facts established at the hearing are not fairly contained
within Hebshie’s petition, Hebshie seeks leave of court pursuant to Fed. R. Civ. P. 15(b) to
amend the petition to conform to the evidence. Leave should be freely granted. The government
is in no way prejudiced by such an amendment, which arises out of the same occurrences as were
raised in the original petition. Cf. Mayle v. Felix, 545 U.S. 644 (2005).
2
defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687. With respect to the first prong, the Court held, “When a convicted defendant
complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's
representation fell below an objective standard of reasonableness. . . . Counsel also has a duty to
bring to bear such skill and knowledge as will render the trial a reliable adversarial testing
process.” Id. at 688. With respect to the second prong, the Court likened it to the standard of
materiality of undisclosed exculpatory evidence under United States v. Agurs, 427 U.S. 92, 104,
112-13 (1976): “The defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. A reasonable probability is less than a preponderance. Id. at 693.
2.
Daubert and Rule 702: The Test for Admissibility of Expert Opinion
Under Rule 702 of the Federal Rules of Evidence, a qualified expert witness may testify
“in the form of an opinion, or otherwise, if (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.” Rule 702 “imposes a
gate-keeping function on the trial judge to ensure that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand.” United States v. Mooney, 315 F.3d 54, 62
(1st Cir. 2002), citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). This
gate-keeping function applies not only to “scientific” testimony, but to all expert testimony.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). The trial court must make the
threshold determination as to whether the “expert’s conclusion has been arrived at in a
3
scientifically sound and methodologically reliable fashion.” Ruiz-Troche v. Pepsi Cola of
Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998). The proponent of the evidence bears
the burden of proof by a preponderance of the evidence. Daubert, 509 U.S. at 593 n.10. In
determining the admissibility of expert testimony, the trial court may consider (1) whether the
theory or technique can be and has been tested, (2) whether the expert’s technique or theory
has been subject to peer review and publication, (3) the known or potential error rate, (4) the
existence and maintenance of standards and controls, and (5) whether the technique has gained
general acceptance in the relevant scientific community. Id. at 593-94. These factors are not
definitive or exhaustive, and the trial judge may consider other factors to evaluate reliability.
Mooney, 315 F.3d at 62.
“The issue is whether (a) the opinions and conclusions of the expert are accompanied by
information that enables the factfinder to evaluate the likely accuracy of the expert’s opinion,
and (b) the information is presented in such a way that the factfinders will not be fooled into
excessively overvaluing the testimony.” United States v. Green, 405 F. Supp. 2d 104, 119
(D. Mass. 2005), citing Michael Saks, The Legal and Scientific Evaluation of Forensic Science
(Especially Fingerprint Expert Testimony), 33 Seton Hall L. Rev. 1167 (2003) [internal
quotations omitted]. “The issue is not whether the field in general uses a reliable methodology,
but the reliability of the expert’s methodology in the case at bar, i.e., whether it is valid for the
purposes for which it is being offered, or what the Court has described as a question of ‘fit.’”
Green, 405 F. Supp. 2d at 119, citing Daubert, 509 U.S. at 591.
B.
Background and General Observations about Trial Counsel’s
Representation of the Defendant in this Case
1.
The defendant was represented at trial by John T. (“John”) Spinale, who filed an
4
appearance in March 2005, approximately fifteen months before trial. Tr. Day 2, 126, 128.2 He
was assisted by his son John S. (“Jay”) Spinale. Tr. Day 2, 170. They succeeded Peter Muse,
who had taken over the case from his father Robert Muse in November 2004. Tr. Day 3, 214-15.
Jay Spinale, who handled the forensic evidence aspect of the defense (Tr. Day 2, 174), had never
before represented a criminal client in federal court. Tr. Day 2, 171. His solo practice centered
primarily on state criminal practice, often in juvenile court, as well as some family law. Tr. Day
2, 170. Like his son, John Spinale, a long-time general practitioner, had limited federal court
experience. Tr. Day 2, 123-25. Neither had ever tried a case to a jury in federal district court.
Tr. Day 2, 125, 171.
2.
Their lack of federal criminal experience was reflected in their conduct of the
defense. They filed no pretrial motions except to obtain incidental relief from conditions of pretrial release. Tr. Day 2, 128. They filed no motions in limine, no motion to sequester witnesses,
and did not seek a Daubert hearing to challenge the government’s forensic evidence. Id. They
filed very few requests for jury instructions, and in support cited Massachusetts rather than
federal cases. Proposed Jury Instructions, Document 76. As noted in the Court of Appeals’s
decision in Hebshie’s direct appeal, defense counsel failed to object to the Court’s clearly
erroneous jury instruction on the elements of mail fraud. United States v. Hebshie, 549 F.3d 30,
42-43 (1st Cir. 2008). Counsel elicited a sanctions warning from the Court for failure to use the
mandatory electronic filing system. Docket Entry 85.
3.
While there is no requirement that defense counsel have prior experience in
2
References to the transcript of the evidentiary hearing held on the 2255 motion are
designated “Tr. Day [#], [page #]. References to the trial transcript are designated “Tr. Tr. [vol.
#], [page #]. Trial exhibits are referred to as “Tr. Ex. [#]; hearing exhibits are referred to as Ex.
[#].
5
federal court, counsel in this case coupled inexperience with a failure to become familiar with the
rules and case law applicable to federal criminal proceedings. See, e.g., Motion for New Trial,
Document 91, and Docket entry, August 7, 2007 (claim of newly discovered evidence is
“extraordinary” and “[a]t best, it bears on the effectiveness of counsel . . .”).
4.
Jay Spinale testified that he spent “thousands” of hours preparing for trial in this
case. Tr. Day 2, 177. This claim strains credulity to the breaking point given the length of time
the Spinales were responsible for Mr. Hebshie’s defense.3 In contrast, he spent little or no time
preparing to testify in this proceeding. Tr. Day 2, 203-04. While he testified that he had
“memorized and knew” the 2004 edition of NFPA 9214, the National Fire Protection
Association’s manual for fire investigators, during trial preparation, he could not recall the
substance of any of NFPA 921 by the time of the hearing in this proceeding. Tr. Day 2, 177. His
testimony was marked by repeated assertions that he could not recall salient details of the case
and his preparation. See, e.g., Tr. Day 2, 180, passim.
C.
Counsel Was Ineffective in Defending the Cause-and-Origin Evidence
5.
Attorney Peter Muse, a member of the Massachusetts bar since 1982 and an
experienced criminal defense lawyer and long-time member of the Criminal Justice Act panel in
3
To bill a total of 2000 hours in a single year is a difficult task, requiring 40
billable hours each and every week for 50 weeks a year. For a sole practitioner juggling
numerous cases as well as the business side of practicing law, it is practically impossible to
devote “thousands” of hours to a single case over a 15-month period.
4
While the government repeatedly referred to the 2001 version of NFPA 921 (Ex.
6), that edition is irrelevant to the question of whether the government’s 2001 cause-and-origin
investigation passed muster in 2006. The question is not, as the prosecutor would have it, what
the prevailing best practices were at the time of the investigation (see Tr. Day 1, 74), but whether
in 2006, defense counsel had a basis to challenge the validity and reliability of the opinion
evidence. In any event, the two editions are not materially different for the purpose of this case.
6
this district (Tr. Day 3, 213-14), represented the defendant for the four-month period ending in
March 2005 when John Spinale filed his appearance. Tr. Day 3, 217. Muse had defended arson
charges in two previous cases, and had challenged the forensic evidence in those cases. Tr. Day
3, 215.
6.
At the time the Spinales took over the case, fire protection engineer John Titus
had already been retained, and Michael Higgins, a chemist, had either been retained or was about
to be. Tr. Day 3, 215. In a letter to Robert Muse, Higgins noted that light petroleum distillate
(LPD), which the government claimed was used to accelerate the fire, is commonly found in
many products and the laboratory had been unable to identify precisely what the substance was.
Ex. 17.
7.
Muse went over the entire file with Jay Spinale, piece by piece, during a Saturday
morning meeting in Muse’s office in Quincy. Tr. Day 3, 218. Muse turned over the Higgins
letter to Spinale (Tr. Day 3, 218), who did not recall ever seeing it. Tr. Day 2, 184. The Spinales
kept Titus on to assist with the cause-and-origin evidence, but did not retain a chemist to assist
with trial preparation or to testify at trial. Tr. Day 2, 132.
8.
In 2005-06, when the Spinales were preparing to defend this case, it was the
prevailing practice among the criminal defense bar to attempt to exclude or limit the
admissibility of technical or scientific forensic evidence in cases where a determination of
criminal responsibility rested heavily on the reliability of such evidence.5 Daubert challenges to
5
Jane Moriarty, a professor at the University of Akron School of Law, testified to
the standard of performance expected of a criminal defense lawyer with respect to challenging
forensic evidence in the relevant timeframe. Tr. Day 3, 327, et seq.; Ex. 14. Professor Moriarty
served as a criminal defense attorney at the Federal Defender’s Office in the Western District of
Pennsylvania and also practiced law in Boston. Her knowledge of criminal defense practice is
also informed by her experience as a judicial clerk, both in Massachusetts, where she clerked for
7
the reliability or accuracy of the technology, in general or in the particular case, motions in limine
to exclude the evidence or to limit its admissibility, and voir dire hearings to test the witnesses’
expertise were all means then available to defense counsel and commonly utilized. Attorney
Muse anticipated that he would have filed a Daubert motion or a motion in limine in some form
to challenge the testimony of the government’s experts. Tr. Day 3, 216.
9.
Daubert challenges were being raised regularly in criminal cases in 2005-06. Tr.
Day 3, 339. In particular, the limits of expertise based on experience had been a concern at least
since 1999 when Kumho Tire was decided. Indeed, the subject was addressed in the Advisory
Committee notes to the 2000 amendment to Fed. R. Evid. 702. Tr. Day 3, 340. Moreover, in the
period up to the time of trial, there were treatises available to defense counsel that addressed
Daubert concerns in the context of arson. Tr. Day 3, 336. See, e.g., Fagan, et al., Modern
Scientific Evidence 636 (2002). The pertinent edition of Fagan raised the issue of challenging
so-called accelerant-sniffing canines as well as the problem of experience- and anecdotally-based
opinions about the cause and origin of fires. Id. at 636; Tr. Day 3, 337-38. While Daubert had
not been rigorously applied in criminal cases,6 it was nonetheless incumbent on defense counsel
to seek to exclude the government’s opinion evidence if there was a factual basis to do so.
Hon. William Young when he was an associate justice of the Superior Court, and in
Pennsylvania, where she clerked for the late Chief Justice Cappy of the Supreme Court of
Pennsylvania. Tr. Day 3, 328. Her academic areas of interest are evidence, and in particular,
expert evidence, and legal ethics, and in particular, the intersection of legal ethics and scientific
and expert evidence. Tr. Day 3, 329. She is the author of a two-volume treatise entitled
Psychological and Scientific Evidence in Criminal Trials and the co-author of a casebook entitled
Scientific and Expert Evidence. She has written a number of articles on forensic science and
expert testimony. Id.
6
See generally National Research Council, Strengthening Forensic Science in the
United States: A Path Forward 9-13 (2009).
8
10.
There were ample factual grounds to challenge the government’s opinion evidence
in this case, and the Spinales were aware, or should have been aware, of those grounds. In
addition to the Higgins letter, John Titus expressed to Jay Spinale his strong disagreement with
the government’s cause-and-origin determination.
11.
The defense theory of cause and origin was that (1) the photographs and other
evidence were consistent with the fire having started in the basement, most likely originating in
electrical wiring; (2) the government’s theory of cause and origin did not explain the phenomena
observed by firefighter Todd Myers at the scene or the physical evidence left behind by the fire,
in particular, the hot spots on all four walls of the shop and the fire’s resurgence after it was
extinguished at the supposed site of origin; and (3) the presence of LPD at the supposed site of
the origin of the fire proved nothing in the absence of proof that the LPD was not incidental to
the premises.
12.
Notwithstanding Higgins’s and Titus’s warnings that the government’s case was
not sound, the Spinales did not move to exclude the opinion evidence of cause and origin under
Rule 702. Tr. Day 2, 128. Jay Spinale testified that he did not seek a Daubert hearing on the
cause-and-origin testimony because he concluded that it was sufficiently reliable. Id. at 189.
John Spinale’s testimony reflected confusion about the applicability of Daubert to arson cases.
Id. at 160. The Spinales’ rationale for not seeking a Daubert hearing was not reasonable and
therefore was not competent.
13.
A Daubert challenge should have been undertaken in this case because:
(1) the scope of the witnesses’ experientially-based expertise was questionable;
(2) Domingos’s investigation fell woefully below the industry standard;
9
(3) there was ample reason to conclude that the cause-and-origin opinions were not
scientifically valid, that is, that Domingos and Miller’s opinion did not reflect a sound
application of scientific principles to the situation at hand;
(4) the complete absence of documentation of the condition of the basement, in light of
the defense expert’s opinion that the fire had to have started in the basement, strongly suggested
that Domingos and Miller’s opinion was not grounded in sufficient facts and data;
(5) the laboratory results indicating the presence of LPD in a single sample of carpet were
insignificant without further identification of the substance and proof that the substance was
neither incidental to the premises nor the result of pyrolysis; and
(6) the relevance of the canine evidence in light of the laboratory sample was minimal,
and the risk of prejudice was substantial. See Tr. Day 1, 64-65; Tr. Day 3, 353.
14.
Having failed to challenge the government’s opinions pre-trial, defense counsel
ineffectively challenged the government’s case at trial. Counsel did not attempt to limit the
scope of the government’s opinion evidence to valid, reliable, and relevant areas of inquiry that
lay within the scope of the witnesses’ respective areas of expertise. Counsel also failed to object
to testimony that clearly was irrelevant, beyond the scope of the witnesses’ expertise, or was
unduly prejudicial. Finally, the defense was essentially abandoned in the defendant’s closing
argument in which counsel conceded that the jury did not need experts to assist them in
understanding how fire works and implored them to use their “common sense.” Tr. Tr. VI, 198.
15.
Todd Myers, a firefighter, testified without objection to the significance of white
spots found on all four walls by the infrared camera. Tr. Tr. I, 106 (“Some white was showing
up on the thermal imaging camera, but we just associated that with areas in the room that were
10
heated by the flames that were just there prior.”); Tr. Tr. II, 5. Not only was this testimony
incompetent, it was wrong. Tr. Day 1, 46-47; Day 3, 285, 292-94. Had the walls been warmed
by fire located where the government says the fire was located, on the left wall of the newsstand,
there would not have been thermal imaging hot spots on all four walls. Tr. Day 3, 285. If the
only source of the heat picked up on the thermal imaging camera was the fire on the B wall of the
newsstand that Myers had extinguished before the camera was deployed, the spots would not
have been white. White spots, properly interpreted, indicate a degree of heat that is much too hot
to permit a person to withstand. Tr. Day 3, 292-93. As John Lentini testified, “He said all of the
walls were hot, and that suggests that the fire – there was heat behind the walls, again, coming up
from the basement rather than heat attaching to those walls from the room because he would
have been in the middle of that heat.” Tr. Day 1, 46. The only interpretation consistent with the
evidence is that there was fire inside all four walls, and the only logical deduction one can draw
is that the fire Myers saw in the rear of the newsstand was not the origin of the fire, but rather
breakout fire from the walls which had come up from the cellar. That the firefighters “might
have” poked holes into the walls (Tr. Day 3, 311), even assuming they did what they “might
have” done, indicates only that the fire had already reached the upper floor. As Titus explained,
“[F]ire travels extremely fast. It goes up the wall like a chimney. It’s going to move a lot faster
than you or I can, of course, and it’s got a head start.” Tr. Day 3, 293.
16.
If Myers’s testimony had been challenged during trial on the basis of his lack of
credentials to offer such an opinion or the scientific validity of the testimony, it would have been
excluded.
17.
The means were available to defense counsel at trial to create a substantial doubt
11
that Domingos had ever gone into the basement to investigate whether the fire started there.
Defense counsel did not adequately exploit the complete absence of photographs of the
basement.7 Nor did defense counsel make use of the report of investigation prepared by Phoenix
Investigations, which had been hired by the building owner’s insurer to investigate the cause and
origin of the fire.8 Phoenix’s business records document that on Monday morning, April 23, the
day after Domingos’s site investigation, Domingos requested Phoenix’s principal Dan Cronin to
contact him if he was going to the site because Domingos wanted to get into the basement. Tr.
Day 3, 233; Ex. 8. Cronin, who called but did not reach Domingos to coordinate a return visit,
went to the site with only his own personnel. Tr. Day 3, 234-36. Like the government agents,
Cronin took no photographs of the basement. Tr. Day 3, 237; cf. Ex. 9 [the Phoenix
photographs]. He testified, credibly, that, although it is usual practice to photograph the
basement of a building, he did not do so because it was impossible to get in the basement. Id.
His site drawing, while far, far more detailed than the government’s drawing (Tr. Ex. 7), does not
depict the location of the stairwell leading to the cellar from the newsstand because Cronin could
not see the stairwell. Tr. Day 3, 239; Ex. 10. Domingos admitted that he never went back to the
site after April 22 for further investigation. Tr. Day 3, 409.
D.
Defense Counsel Was Ineffective in Failing to
Move to Exclude or Limit the Canine Testimony
18.
At trial, Massachusetts State Police canine handler Doug Lynch testified at great
7
Two photographs were taken of the stairwell into the cellar, both from the vantage
point of the first floor. Tr. Ex. 12G; Ex. 13.
8
Jay Spinale did not seek to obtain further documentation of the condition of the
basement and did not contact Daniel Cronin, principal of Phoenix Investigations, or any of the
insurance investigators to obtain additional photographs. Tr. Day 2, 191.
12
length about his dog Billy’s alert along the B wall of the newsstand. In closing, the government
argued that the dog’s failure to alert elsewhere indicated that the alert occurred at the site of the
origin of the fire. Tr. Tr. VI, 171. The Lynch testimony, buttressed by the closing argument, was
powerful and effective.
19.
Jay Spinale testified that he did not seek to exclude the canine evidence because
“every case in every jurisdiction, every case that I read prior to this trial, every jurisdiction
permits the canine and to the point where they permit canine alert testimony even when there’s a
negative sample.” Tr. Day 2, 178; see also id. at 136. Spinale admitted that there was no
strategic reason not to seek a Daubert hearing with respect to the canine, and that he would have
objected to or moved to exclude the government’s expert testimony if he thought there was a
basis for excluding it. Id. at 168.
20.
In fact, there was a basis to exclude, or at a minimum, limit the canine evidence.
NFPA 921 makes clear that canine handler teams are to be used only to assist in the location and
collection of samples for laboratory analysis for the presence of ignitable liquids. NFPA 921,
¶ 16.5.4.7, Ex. 2. NFPA’s position that canine teams are useful only as an investigative tool is
consistent with research findings that dogs are prone to false positives. See, e.g., Kurz, Michael
E., et al., Evaluation of Canines for Accelerant Detection at Fire Scenes, 39 Journal of Forensic
Sciences 1528 (1994) (Ex. 12); Katz, Sheryl R., et al., Unconfirmed Canine Accelerant
Detection: A Reliability Issue in Court, 43 Journal of Forensic Sciences 329 (1998). Even ATF
Special Agent Michael Marquardt, the government’s expert witness at the hearing, conceded that
canines are nothing more than a tool for site investigation. Tr. Day 4, 515.
21.
Substantial questions about the reliability of canine evidence had indeed been
13
raised in the courts, including the U.S. Supreme Court, by 2005. See Illinois v. Caballes, 543
U.S. 405, 411-12 (2005)(Souter, J., dissenting)(“The infallible dog, however, is a creature of
legal fiction. . . . [T]heir supposed infallibility is belied by judicial opinions describing
well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to
errors by their handlers, the limitations of the dogs themselves, or even the pervasive
contamination of currency by cocaine. . . . Indeed, a study cited by Illinois in this case for the
proposition that dog sniffs are "generally reliable" shows that dogs in artificial testing situations
return false positives anywhere from 12.55 to 60% of the time, depending on the length of the
search.”), and cases cited therein.).
22.
If counsel was not already on alert to the limitations of canine evidence by virtue
of NFPA 921 and articles in the forensic literature raising concerns about the lack of data and
standards to support claims of canine accuracy and reliability (Tr. Day 3, 342-43), this Court’s
repeated inquiries as to whether the dog evidence would be subject to a Daubert hearing should
have prompted counsel to look at the question more closely. It did not. See Tr. Tr. III, 60, 121;
IV, 112.
23.
Counsel could not recall asking the government for reports on the testing of the
dog at issue. Tr. Day 2, 141. There is no indication that any such reports were produced to the
defense. At a Daubert hearing, the burden would have been on the government to establish the
reliability of the dog to a fair preponderance of the evidence. 509 U.S. at 593 n.10. While the
accuracy of the alert with respect to the single sample taken is arguably demonstrated by the
positive laboratory report, that begs the question of what, if anything, the unsubstantiated and
subjective testimony about the dog’s accuracy added to the government’s case. The answer is
14
twofold: first, that the dog was alerting, not merely to a hydrocarbon, but to an “accelerant”; and
second, that the dog’s failure to alert elsewhere was used to pinpoint the location of the alert as
the point of origin. As to these uses, there was no proof of the dog’s accuracy, and there could be
no proof. Had defense counsel challenged the use of the canine non-alert in a Daubert hearing or
sought to prevent the prosecutor and witnesses from claiming that the dog could distinguish
between pyrolytic products and “accelerants”, the government would not have prevailed.
24.
In what is perhaps the most egregious of many serious lapses at trial, counsel did
not object under either Rule 702 or Rule 403 when Lynch began testifying far beyond the scope
of the arguably appropriate use of a detection canine to narrow the search for samples to be taken
for laboratory testing. Tr. Day 2, 183. The jury was treated to extensive irrelevant and
inflammatory testimony about Billy, the canine at issue, and to an unrelated dog, Amore, who
had also been trained by Lynch. The testimony about the dogs extended over 56 pages of direct
examination. Tr. Tr. III, 139-179; IV, 8-24. Much of the ostensibly expert testimony was
entirely subjective and unreliable, e.g., testimony that the dog gave a “strong” alert, a “solid hit.”
Tr. Tr. IV, 17. Counsel also did not object to repeated references to the dog as an “accelerant
detection canine” (e.g., Tr. Tr. III, 141, 145, 157) even though the dog is trained to alert to
hydrocarbons, not “accelerants.” Counsel also failed to object to or in any way challenge
Lynch’s unsubstantiated, ipse dixit testimony that Billy was 97% accurate (Tr. Tr. III, 156)9, and
to testimony as to which no expertise was demonstrated, e.g., how the “olfactory system” of the
9
There are no peer-reviewed standardized methods of training detection dogs and
their reliability is highly variable. Tr. Day 3, 306. By the time this case went to trial, the Journal
of Forensic Science had reported the results of studies indicating a substantial error rate with
canine alerts, far higher than Lynch asserted with respect to his dog. Tr. Day 3, 343; see, e.g.,
Ex. 12.
15
dog works, why it is important to the dog (Tr. Tr. III, 141), what is instinctual in a dog (Tr. Tr.
III, 142), etc., etc. Lynch’s testimony, which was the centerpiece of the government’s case, was
often very far afield, including a lengthy explanation of the training of Amore, a narcotics dog
who died in 1995, six years before the fire at issue. Id. at 144. The subjectivity of the dog alert
was made a centerpiece of the government’s presentation, as if the relationship between dog and
handler enhanced the reliability and probative value of the lab results, rather than undermined it:
Her uniqueness, there was a lot of uniqueness to her alert, it was
beyond the odor, sit, food. There were certain things that over the
period of time that I handled this dog, I read her face. I was with
her 365 days a year. It was the first thing I did every morning, it
was the last thing I did every night for the entire time that I had that
dog.
I knew her personality, I knew the way her eyes shifted. I knew the
ways her ears shifted when she located stuff. There were things
she did. Her head would cock to the side, her ears, I don’t know if
anyone owns a Labrador. Their ears are kind of expressive. Her
ears would go up in the corners, her head would tilt to the side, and
her tail would start to got [sic]. There were very distinctive things
that she did at the fire scenes that I didn’t see at other places with
her. It was an excitement in the dog that she had located what she
was looking for.
Tr. Tr. III, 150-151. None of this obviously objectionable testimony incited an objection from
the defense.
25.
Lynch was also allowed to explain, without any demonstrated basis and without
objection, the cause of Billy’s few errors. Id. at 156. While admitting that the dog was not
infallible, Lynch opined that he himself may have been at fault for failing to collect the sample
properly. Id. In short, Lynch’s testimony about Billy’s uniqueness, her specialness, and her
prowess at detecting “accelerants” went far beyond any plausible, if marginal, relevance about
use of the dog to help select a location for collection of a sample. Defense counsel, while
16
concluding that the testimony, which lasted “like half a day” (it actually extended over parts of
two days), was “over the top”, nonetheless did not object because he believed that the testimony
was admissible. Tr. Day 2, 148. This assessment was unreasonable and incompetent.
26.
The government elicited testimony from Lynch that the dog did not alert to
anything else on the premises. Tr. Tr. III, 177; IV, 17, 20. Defense counsel did not object. A
dog’s failure to alert was never shown to be scientifically significant in general or in this case.
The testimony was not admissible. Counsel should have objected and the failure to do so was
unreasonable and incompetent. No viable strategy could justify the failure, and, in any event, the
Spinales did not claim the failure was strategic. Had the objection been made, it would have
been sustained.
27.
The entire canine evidence was grossly out of proportion to any legitimate
evidentiary value it arguably had. Even if the dog’s alert added anything of scientific value to the
lab results – which it emphatically did not – the dog-related testimony and argument in this case
should have been excluded under Fed. R. Evid. 403. Repeated references to the dog’s
personality, her demise, and Lynch’s obvious love for the dog injected an emotional quality to
the evidence that gave it far more significance than it warranted. In short, the canine evidence
was grossly and unfairly and improperly prejudicial. Had the defense mounted any sort of
challenge to it, it would have been excluded or severely curtailed.
28.
In closing argument, the government argued that the dog’s failure to alert
elsewhere on the premises proved that the origin of the fire was located where the dog did alert.
“Billy knew what she was smelling for. She indicated an alert on one place and one place alone.
It was a strong alert. If it was the carpet that was setting her off, then she would have triggered
17
everywhere else around her.” Tr. Tr. VI, 171. Defense counsel did not object and failed in the
defense closing to respond to the government’s argument. Id. at 189. Like the failure to object
to the improper canine testimony, counsel’s failure to object to this improper argument was
unreasonable and incompetent. Had he done so, the objection would have been sustained.
E.
Counsel Was Ineffective in Failing to Move to Exclude the Laboratory Analysis
of the Carpet Sample where No Comparison Sample Had Been Taken
29.
Jay Spinale, notwithstanding his claim of intimate familiarity with NFPA 921, did
not challenge the admissibility of the test results performed on a single laboratory sample on the
ground that the results in this case, that is, results indicating the presence of an unidentified LPD
in a newsstand, are meaningless in the absence of a comparison sample. Without such a
comparison, it is not possible to determine whether LPD found in a charred carpet sample was
incidental to the pyrolysis of the carpet, was part of the make-up of the carpet itself, or was a
foreign substance. Tr. Day 2, 194.
30.
Titus testified that he alerted the Spinales to the need for a comparison or control
sample in order to ensure that the presence of a chemical in one location is not also present
elsewhere. Tr. Day 3, 268.10
31.
Lynch testified at trial that he did not take a comparison sample in this case and
that he does so in less than 10% of cases. Tr. Tr. III, 169. He also testified that he decided
whether to take a comparison sample based on the “type of alert” that he had from the dog, how
10
As noted at the hearing, presence of the same hydrocarbon elsewhere may or may
not be consistent with its use as an accelerant, depending on the nature of the hydrocarbon found
and other factors that may explain why the substance would or would not be expected to be in
multiple locations. To the extent that the test results are relied upon to show point of origin, of
course, presence of the substance in multiple locations tends to disprove that claim.
18
many alerts he had from the dog, and whether he was requested to take a sample. Id. at 169-170.
In contrast, NFPA 921 indicates that a comparison sample should be taken wherever possible
since the need for a comparison sample is made by the lab and not on site. Ex. 2, ¶¶ 16.5.4.6.1.,
15.5.4.6.3. Lynch’s claim that he is competent to determine whether a comparison sample is
necessary is preposterous. There is no basis in established science to support Lynch’s opinion
that the type or number of the dog’s alerts is relevant to the decision whether to take a
comparison sample. The need for a comparison sample does not relate to the accuracy of the
dog, but to the significance of the laboratory analysis to the investigation. There was no evidence
that Lynch was qualified to testify about the chemistry of pyrolysis (Tr. Tr. III, 169), or that “I
didn’t have a lot of problems with pyrolysis products with the dog.” (id. at 170), or to describe
styrene and its prevalence in the environment. Id. at 171. The scope of Lynch’s expertise with
respect to fire and hydrocarbon chemistry could and should have been vetted in a Daubert
hearing, or at a minimum, challenged at trial. Counsel’s failure to do so was unreasonable and
incompetent. Had a challenge been made, it would have been successful.
32.
The government offered no other explanation for failing to take a comparison
sample. No showing was made that it was impossible or impracticable to do so. Photographs
introduced at trial, Tr. Ex. 12C and 12E, show that the “carpet is in very good shape for a carpet
that supposedly had ignitable liquid put on it.” Tr. Day 1, 40.
33.
Without a comparison sample, the laboratory results that LPD was found in the
carpet was not probative. The results do not permit an inference that the fire started at the
location of the alert and they do not permit an inference that the fire was incendiary. The mere
presence of LPD is proof of precisely nothing other than the presence of LPD, an irrelevant fact
19
unless the presence is shown to be foreign to the environment. There was no such proof at trial.
Because of the risk that the jury would attach weight to this meaningless result, competent
defense counsel should have challenged the admissibility of the laboratory sample before trial.
Failing that, admissibility should have been challenged at trial. Defense counsel did neither.
Instead, counsel weakly criticized the failure to obtain a comparison sample in crossexamination. Tr. Tr. IV, 51-52. This was no substitute for excluding the evidence entirely.
F.
Counsel Was Ineffective in Conceding Miller’s Qualifications
and in Failing to Rehabilitate the Expertise of Titus
34.
The Spinales did not utilize Titus to assist them in preparing to cross-examine the
government’s experts after they had testified on direct examination. Tr. Day 3, 272. In
particular, Titus was not asked to stay to listen to the testimony of the government’s rebuttal
witness Wayne Miller. Id.
35.
Defense counsel conceded Miller’s qualifications as a cause-and-origin expert,
without having asked for a voir dire hearing on his qualifications, the opinions he would testify
to, and whether those opinions fell within the scope of any field of expertise. Tr. Tr. VI, 105.
While this may have been appropriate in some cases, it was not appropriate strategy in a case that
rested so heavily on the whether the experts’ reasoning and application of scientific principles
were sound and reliable.11
36.
Miller was a private consultant who had been a special agent with ATF for most
of his career. Tr. Tr. VI, 103-04. Like Domingos, he was a certified fire investigator. Id. at 108.
11
Mr. Spinale testified at the hearing that he believed that Miller testified the day
following Titus’s testimony, which would have afforded him an opportunity to discuss Miller’s
qualifications with the prosecution. In fact, Miller testified on the same day as Titus. Compare
Tr. Day 2, 154 with Tr. Tr., VI, 103.
20
He had never been to the site. He formed his opinion based on the documentation and
photographs of the scene and on an interview with Domingos. Id. at 109, 113. Miller opined,
contrary to Titus, that there was no evidence the fire had started in the basement. Id. at 112, 127.
Of course, such an opinion is worthless unless it is based on sufficient facts and data. Otherwise,
the jury is likely to equate lack of evidence with evidence to the contrary.
37.
Miller claimed that the hearing grate showed no evidence that it had been affected
by heat. Tr. Tr. VI, 127- 29. There is no indication that Miller was competent to testify as to
how heat and fire affect steel. The failure to challenge Miller’s expertise was prejudicial in that
he was permitted to testify, without objection or rejoinder, that the condition of the metal did not
exhibit any evidence of contact with fire or heat. This testimony went to the jury without any
challenge whatsoever. In fact, as Titus would have testified had he been called, the grate as
depicted in Tr. Exs. 12C, D, and E, showed clear evidence of damage by heat, including
discoloration of the metal and severe rusting, which occurs when steel is exposed to heat and
then moisture. See Tr. Day 3, 274-77. The flooring around the grate also exhibited heat damage.
Tr. Day 3, 275. According to Titus, had he been given an opportunity to react to Miller’s
testimony, he “would have made a very, very strong case that this is not the kind of information
that the jury should be allowed to take away.” Tr. Day 3, 277. Lentini, too, opined that Miller
simply did not have enough evidence to support his opinion. Tr. Day 1, 58.
38.
Had the Spinales sought a voir dire of Miller’s qualifications and the opinions to
which he would testify, his testimony would have been limited or excluded. He would not have
been permitted to testify to the effect of heat on metal without demonstrated expertise in that
area. In light of the poor quality and quantity of the documentation in this case, he would not
21
have been permitted to testify that he saw “no evidence” the fire started in the basement.
39.
Titus was subjected to extensive and withering cross-examination on his
qualifications. Tr. Tr. VI, 65, et seq. The cross-examination centered on the fact that Titus,
unlike the government witnesses, is not primarily an arson investigator, but rather a fire
protection engineer, as if that made him less, rather than more, qualified than the government’s
witnesses. Titus was ineffectively rehabilitated on this point, even though Jay Spinale knew that
Titus’s education, licensing, and experience were far more substantial and rigorous than the
largely on-the-job training and experience that informed Domingos’s and Miller’s testimony. Tr.
Day 3, 255. As Titus demonstrated at the hearing in this proceeding, his formal education in
preparation for licensing as an engineer included numerous graduate-level courses in chemistry,
physics, and fire dynamics, as well as mathematics and other engineering-related science courses.
Tr. Day 3, 247-49; Ex. 11. In contrast, none of the government’s experts had an engineering
license and none had pursued a course of studies in the physical sciences. In every case, the
government witnesses who gave expert testimony had criminal justice training and/or a liberal
arts education, and their experience was solely in the area of law enforcement (David Domingos,
Wayne Miller) or firefighting (Todd Myers). Domingos’s undergraduate degree was in
psychology; he also held a master’s degree in criminal justice. Tr. Day 3, 407. He has never
studied chemistry or physics at even the undergraduate level. Id. While the government touted
their certification as fire investigators by the International Association of Arson Investigators,
that certification establishes expertise merely at the level of technician or technologist and is
primarily experience-oriented. Tr. Day 3, 252, 253. Certification requires only a certain level of
experience and passing a multiple choice examination involving 100-120 questions. Id.
22
Certification does not require the demonstration of an ability to correctly determine the cause and
origin of a fire. Id. There is no peer review structure in the CFI certification, there is no control
over the quality of the qualifying experience, and to a large extent there is no control over the
educational background of a certified applicant. This is in contrast to the requirements for a
professional engineering license, for which a peer-reviewed curriculum is established and
successful completion of that curriculum is followed by a rigorous, multi-day examination which
is reviewed and graded by professional engineers. Id. at 254. In short, there is no comparison
between the expertise of a licensed, professional fire protection engineer and a certified arson
investigator, who may have little or no education in fire science. Tr. Day 3, 255. Defense
counsel should have, but did not, clarify the distinction between a fire protection engineer and a
certified fire investigator on redirect examination.12
40.
Defense counsel also failed to rehabilitate Titus with respect to the impression left
on cross-examination that Titus conceded that the dog “was 100% accurate” and that the
literature established the accuracy of canine alerts. See Tr. Tr. VI, 98. Because Titus had made
Jay Spinale aware before trial that the technical literature questioned the reliability of canine
alerts, Spinale should have known that Titus intended to say, before the prosecutor cut him off,
that the literature is widespread in raising the problem of inaccurate alerts, both positive and
negative. Tr. Day 3, 255, 258-66. Competent, alert counsel would have corrected the
misimpression left by Titus’s incomplete testimony, and there was no conceivable reason to leave
12
NFPA 921, with which Jay Spinale claimed verbatim knowledge at the time of
trial, makes clear that a fire protection engineer’s training exceeds that of a certified fire
investigator, and may be needed to provide technical assistance to the fire investigator. See Ex.
2, ¶¶ 14.5.1, 14.5.6.1.
23
the jury with the notion that Titus endorsed Billy’s accuracy “100%.”
G.
41.
Trial Counsel’s Closing Effectively Undercut Hebshie’s Principal Defense:
that the Government’s Cause-and-Origin Evidence Did Not Bear Scrutiny
In closing argument, defense counsel effectively conceded Domingos’s
qualifications to render an opinion on cause and origin: “Now, you heard David Domingos
testify, and David Domingos testified that he’s a fire investigator, and, incidentally, I think the
guy is a very qualified person, a very straight fellow that told you what he really believes. I don’t
quarrel with any of his testimony.” Tr. Tr. VI, 188. Defense counsel similarly endorsed the
impressiveness of Billy and handler Doug Lynch. Id. at 189. Ultimately, defense counsel invited
the jury to ignore differences between the defense and government theories of the cause and
origin of the fire and to rely on their collective common sense. “When it comes to the experts
that testified, I suggest to you there’s little difference between what these people say. . . . We
don’t need an expert to tell us the fire burns up, heat burns up.” Id. at 198. In effect, after
praising the qualifications, reliability, and bravery of the government’s witnesses, defense
counsel invited the jury to ignore his own expert’s testimony about cause and origin, thereby
seriously undermining Hebshie’s defense.
42.
It was unreasonable and incompetent for counsel to abandon its principal defense
in closing. No minimally competent lawyer would have done so. There was no possible
strategic reason to endorse Domingos and Lynch, nor was there a reason to invite the jury to
disregard the substantial differences in the testimony of the defense and government witnesses
with the suggestion, essentially, that it was all a wash.
H.
Hebshie Was Prejudiced by Counsel’s Ineffective Performance
43.
The second prong of the Strickland test requires in inquiry into whether there is a
24
reasonable probability that defects in counsel’s performance affected the outcome of the case.
In this case, counsel’s ineffective performance unquestionably affected the outcome. Exclusion
of any substantial portion of Lynch’s testimony would very likely have affected the jury’s
assessment of the government’s case, given its marginal relevance, its incompetence, and its
inflammatory emotionalism. Given that the government was never able to identify which among
a generic class of thousands of LPD’s was found in the sample, there was a clear failure of proof
which the canine evidence obscured. Evidence that the “accelerant-detecting” dog gave a “strong
alert” – an entirely subjective assessment with no demonstrated meaning – effectively substituted
for reliable, scientifically valid evidence that what the dog alerted to had any tendency to prove
that the fire was incendiary and originated at the location of the alert. The canine evidence added
nothing to the evidence on either point: it did not establish (1) what, specifically, the chemical
was; (2) that the chemical was not incidental to the environment; (3) how the chemical came to
be at the spot of the alert; (4) that the chemical was used to start the fire; or (5) that the fire
started in the location where the sample was taken. Yet, the government’s extensive focus on the
canine evidence invited the jury to infer all of those impermissible deductions. The erroneous
admission of this evidence, which was the subject of the longest testimony of the trial, stretching
over two days, and the subject of extensive and improper argument by the prosecution in its
closing, in all likelihood affected the outcome of this trial. The jury could hardly ignore it,
particularly given that defense counsel himself endorsed Lynch and Billy in its closing argument.
44.
Exclusion of the laboratory results would have left the government without any
evidence, except financial motive, to support an inference that the fire was set. The improper
inclusion of the laboratory results in all likelihood affected the outcome.
25
45.
The failure to challenge the basis of the overall cause-and-origin opinions, and the
qualifications of the government’s opinion witnesses, was unquestionably prejudicial. Had the
defense effectively shown that principles of fire dynamics were inconsistent with the
government’s analysis of the fire dynamics in this case, a reasonable jury would likely have
concluded that the case was not proven. Similarly, if the defense had effectively prevented Todd
Myers from testifying incorrectly to the import of the thermal imaging results, the jury would
have had little choice but to conclude that the fire was already in the walls when it erupted into
open space within the newsstand.
46.
As noted in Hebshie’s memoranda filed in support of this petition, this prejudice
must be weighed in light of the other deficiencies and errors not addressed herein: the completely
irrelevant, improper, and inflammatory evidence that a firefighter suffered a heart attack as a
result of the defendant’s conduct and the failure to mount any challenge at all to the mail fraud
charge which carried a ten-year on-and-after minimum sentence.
47.
The Strickland standard of prejudice is not high. It does not require Hebshie to
show even that it is more likely than not that, but for counsel’s errors, he would have been
acquitted. But, in this case, the evidence of prejudice is overwhelming. The second prong of
Strickland is amply met in this case. Without the cause-and-origin evidence, there would have
been insufficient evidence to support the arson charge, and by extension, the mail fraud charge.
Had counsel performed effectively, the Daubert challenge might well have resulted in dismissal
of all charges.
IV.
The Government’s Investigation Was So Incomplete and
So Poorly Documented that the Indictment Should Be Dismissed
Little of the government’s evidence at the hearing was material to the question of
26
ineffective assistance of counsel, but rather was an exercise in face-saving, a justification of an
investigation that Lentini described as “miserable.” Tr. Day 1, 29-30. Domingos’s and
Marquardt’s defense of the investigation in this case demonstrates how little they really
understand the scientific method. While the government witnesses paid lip service to NFPA 921,
they followed neither its letter nor its spirit.
Domingos appears to have understood the scientific method to mean little more than that
an investigator starts from least to greatest areas of damage. He did no vector analysis, collected
no data on depth of char, did no arc mapping, event sequencing, analysis of fire dynamics, etc.
Tr. Day 1, 79, 89; Tr. Tr. III, 107. Cf. NFPA 921, Chapter 17; Figure 17-2;13 Tr. Day 1, 76. The
Phoenix report illustrates how the investigation in this case was marred by tunnel vision and
expectation bias, that is, jumping to a conclusion before all evidence was gathered and then
limiting the collection of evidence to that which supports the expectation. Tr. Day 1, 56; Ex. 3,
¶ 4.3.8. As early as Monday morning, April 23, at the same time that he expressed a need to see
the basement and long before the laboratory sample was analyzed, Domingos told Cronin that the
fire started in the convenience store. Ex. 8. Domingos’s conduct exhibits not only tunnel vision
on his own part, but also an insensitivity to the problem of contextual bias created when one
investigator is informed of the results of another investigator. See generally National Research
Council, Strengthening Forensic Science in the United States: A Path Forward 122-23 (2009).
Contrary to Domingos’s testimony (Tr. Day 3, 381), NFPA 921 does not require
documentation of only the burned areas, but of the “investigation” (Ex. 2, ¶ 15.1.2), including
13
Chapter 17 was rewritten in the 2008 edition. Tr. Day 1, 80, Ex. 2.
27
“evidence of reasonable alternative hypotheses that were considered and ruled out.” Id.,
¶ 11.3.5.2. This requirement he utterly failed to meet. In fact, it is clear that Domingos never
formulated alternative hypotheses about the origin of the fire; his flippant testimony about
alternative causes, including nuclear explosions and lightning, was dismissive of the notion that
alternatives must be thoroughly examined. Tr. Day 3, 403.
Domingos’s testimony also demonstrated a poor understanding that the purpose of
documentation is to support and verify the investigator’s opinions and conclusions. Tr. Day 3,
398; cf. NFPA 921, ¶ 15.1.2. He testified that it was not important to provide sufficient
documentation so that a supervisor could check to see whether alternative hypotheses had been
properly rejected, because, with three troopers and two local fire department investigators on site,
“in a sense we had peer review at the scene.” Tr. Day 3, 400. But, investigators working
together to develop group consensus reflected in a single report of investigation are not
performing the function of independent review. That function cannot take place without
adequate documentation of findings.
One effect of Domingos’s poor documentation is that, five and nine years later, testifying
under oath, he simply filled in the gaps in the documentation, with demonstrably poor accuracy
but little doubt. For example, after Lentini criticized the failure to remove debris from the floor
of the newsstand as depicted in the photographs, Domingos claimed that he systematically
removed debris from the site so that 90-95% of the area of the newsstand was walkable. Tr. Day
3, 387, 392. That statement is belied not only by the complete lack of documentation of any
process of sifting through and removing layers of debris, but by the photographs taken at
Cronin’s behest the next morning, which show that the site was still buried in debris. Ex. 9.
28
Another telling example is Domingos’s testimony about the location of the stairwell in
the newsstand. Tr. Ex. 7 the diagram of the newsstand floorplan, does not show the stairwell into
the cellar. Nor is it mentioned in Domingos’s report. Asked where the stairwell was located,
Domingos incorrectly testified that the stairwell was located in front of the partition, and across
from the purported point of origin. See Tr. Day 3, 408, 411. In fact, as the government
stipulated, the stairwell was located on the right-hand wall, in the back office area, along the wall
separating the newsstand from Ro-Ann Jeweler. Tr. Day 4, 522.
Another effect of the poor documentation is that other government witnesses who offered
opinions either on the cause and origin of the fire or the adequacy of the investigation relied on
what Domingos testified to or told them without independent verification. A comparable
situation would be if one fingerprint examiner testified that in her opinion the fingerprints were a
match, not based on actually reviewing the fingerprints, but based on the testimony of another
fingerprint examiner who claimed he did. There is simply no value in such testimony.
Domingos attempted to justify the poor documentation of his investigation on the grounds
of limited resources. But while he testified that he was hampered by having only limited film at
his disposal (Tr. Day 3, 395), the photographs that were taken under his direction (see Ex. 19)
include a posed portrait of the troopers with Billy, and several other useless and/or duplicative
photographs – a poor use of what Domingos claimed was an extremely limited resource.
Domingos’s statement that he did the best he could “on that particular day with the resources that
we have available to us” (Tr. Day 3, 385), translates, roughly, to “good enough for government
work.” It cannot justify rushing to judgment about how and where a fire started, and, on that
basis, bringing charges entailing a 15-year minimum mandatory sentence.
29
In sum, the evidence in this case amounted to no more than Domingos’s ipse dixit,
unsound pseudo-science (Myers’s interpretation of the thermal images, the lab report on the
sample, and the canine evidence), and photographs which are inconsistent with Domingos’s
conclusions. None of the government’s witnesses could explain how a fire starting within the
newsstand could possibly, consistent with the laws of physics, have resulted in the fire damage to
the grate or the header or lintel of the stairwell to the cellar. None of them explained how a fire
starting within the area of the shop managed to go sideways to enter the pipe chase, while leaving
most of the plywood intact. None of them could satisfactorily explain how a fire starting in the
newsstand could possibly have resulted in white spots on all four walls after the fire was
extinguished at the suspected place of origin. None of them credibly explained how the damage
to the B wall and the areas not damaged along that wall are consistent with the fire having started
within the room. See Exs. 4, 5.
As Lentini explained, had the fire started where the government witnesses posited, one
would expect to see more damage at that location than is evident in the photographs. The fire
would have spread out horizontally at the area of the shelf, and the thin plywood siding on the
walls would have be much more heavily burned. Tr. Day 1, 51. If anyone ever went into the
cellar, and it appears unlikely that anyone did, then the absence of fire observed there means that
the fire shot up through the pipe chases and vacant spaces in the walls and burned at higher
levels. It was imperative for the investigators to carefully examine the cellar ceiling below the
suspected point of origin along the B wall. The “V” pattern was two feet wide at the floor,
indicating that the point of the V was below the newsstand floor level. Tr. Day 1, 37. All of the
phenomena observed in Exs. 4 and 5 are consistent with the fire having come through the pipe
30
chase and are not consistent with the fire having started in the shop. Tr. Day 1, 38-39.
While the government more or less conceded that Domingos’s investigation did not
follow the letter of NFPA 921, the defense of the investigation seems to be: nowhere does NFPA
921 say how bad an investigation has to be in order to render it unreliable. This defense holds no
water. No manual setting forth a consensus of good practice would or could prescribe the point
at which an investigation is so compromised that the results are invalid. What is clear is that, as
much as the prosecution would like to cabin the deficiencies in the investigation as narrowly as
possible, they were fundamental and pervasive and they compromised the entire cause-and-origin
determination.
What the failure to document the site amounts to in this case is spoilation of evidence.
The state fire investigators had control of the scene and released it without preserving sufficient
evidence. Given that it is now impossible to reconstruct the fire scene, to perform arc mapping,
to examine the floor for burn patterns, to examine the underside of the floor on the B side of the
newsstand, to see the condition of electrical components in the basement under the jewelry store
and under the newsstand, or to collect additional samples for laboratory analysis, Hebshie is
deprived of the ability to conduct an investigation necessary for his defense. Moreover, it is plain
that the government cannot withstand a Daubert challenge to the entire cause-and-origin
determination. Accordingly, the indictment in this case should be dismissed and Mr. Hebshie
released from custody forthwith.
31
CONCLUSION
For the foregoing reasons and for those raised in Hebshie’s 2255 petition, and the
memoranda and affidavits submitted in support of the petition, he respectfully submits that the
petition be granted, the indictments dismissed, and that he be released from custody.
Respectfully submitted,
JAMES G. HEBSHIE
By his attorney,
/s Jeanne M. Kempthorne
Jeanne M. Kempthorne
BBO No. 267410
7 Bott’s Court
Salem, MA 01970-3101
(978) 745-4673
Date: August 20, 2010
CERTIFICATE OF SERVICE
I hereby certify that I have this day caused the foregoing Proposed Findings and Rulings
to be served on counsel of record by means of the CM/ECF system.
/s/ Jeanne M. Kempthorne
Date: August 20, 2010
32