Forensics Implementation and Human Rights

By Brian Howe

Liliana Segura has an interesting article over at The Intercept about the case of Claude Garrett, who was convicted in 1992 of killing his girlfriend Lorie by (or at least, in connection with) burning down the house they shared.

Garrett’s story illustrates the problems with junk science in arson investigations. The case also illustrates how advancements in forensics are not self-implementing, and mere acknowledgment of these problems does not dispel them.

If Garrett’s story sounds familiar, it may be because it is remarkably similar to the Cameron Todd Willingham case.  Like Willingham, Garrett escaped a burning house.  His girlfriend, Lorie, did not and was found trapped downstairs, dead from smoke inhalation.  Neighbors who initially did not report anything wrong began to notice, in hindsight, that Garrett’s reaction was strange or not sufficiently emotional.  Garrett had a lengthy criminal history and was easy to villianize.  Most importantly, arson investigators testified from simple observation that they knew the fire in Garrett’s house was the result of arson.

We now know that much of the methodology used in arson investigations at the time– if it can even be called a methodology– was severely flawed.  But although knowledge of these problems has been around for decades, since as early as the 1990s, the lessons have yet to be fully absorbed by some fire investigators:

“Recent experiments have yielded troubling results. In one 2005 test, ATF researchers asked 53 professional fire investigators to pinpoint the origin of a series of post-flashover fires. Only three were able to do so accurately — most drew false conclusions based on burn patterns. In 2011, a test conducted by  the California-based Arson Research Project asked professional fire investigators to assess 12 post-flashover burn patterns and distinguish between those that involved a liquid accelerant and those that did not. In reality, there is no way to tell the difference based on visual evidence alone. Yet out of 33 investigators, only three responded that such a conclusion could not be determined based on this evidence.”

To have only 1 in 10 investigators acknowledge the impossibility of visually deducing arson from pour patterns, as recently as 2011, is inexcusable.  How many of those investigators continue to offer these same opinions in criminal trials?

Scientific advancements do not automatically incorporate themselves into the bureaucracy of our criminal justice system. Instead, lawyers and judges are tasked as gatekeepers as to what evidence comes before a jury. Garrett’s case became a perfect example of how this can go wrong when he was granted a re-trial in the early 2000s.

“But at the retrial, which began on July 21, 2003, nothing went according to plan. [Defense attorney] Scott did not call Dr. Roth. The projector equipment [defense expert] Bayne planned to use to demonstrate fire behavior to the jury malfunctioned — and Scott took him off the stand before he could thoroughly explain fire behavior. Aside from a cursory mention in Scott’s opening statement, the jury heard almost nothing about NFPA 921 — and very little about modern developments in fire science. Defending his theory that the fire was accidental, Bayne said during cross-examination that if [the victim] Lorie had dropped a cigarette in the love seat, “Lorie created this tragedy.” The poor turn of phrase was seized upon by prosecutor Jon Seaborg as suggesting she had been “responsible for her own death with her cigarette smoking.””

At the original trial, prosecutors presented testimony that the initial people at the scene had found Lorie locked in a utility room from the outside.  Garrett initially won his new trial, not because of junk arson science, but because investigators were found to have withheld documentation that this room was not locked when first responders arrived.  Incredibly, on both this point and the junk arson science, the State’s approach at the new trial was to simply push forward with the original story.

“Meanwhile, testifying for the state, Fire Captain Otis Jenkins said he had no memory of telling police that the utility room was unlocked. (“I’ve said the whole time that the door was locked,” he said.) But most significantly, Cooper, who had stopped investigating fires in the mid-90s, continued to swear by the same theories about pour patterns that had been exposed as myths more than a decade before. His conclusions, he said during cross-examination, were reached “[j]ust through my training and experience.” He added, “If I’m proven wrong I will admit I am wrong. But on this one, no sir. I was there. I saw it with my eyes.”

It took the second jury less than five hours to send Claude back to prison.”

Garrett has been unsuccessful in recent litigation to re-open the case a second time.  There has been some push recently towards finding a substantive due process right against conviction based on faulty science.  That may help provide some kind of baseline accountability in situations like these. 

Garrett’s case is a useful reminder that scientific advancements towards identifying junk science are necessary, but not sufficient, to prevent wrongful convictions.  Dispelling myths inherent in junk science is critical to effective human rights advocacy in both our criminal and civil justice systems.