REPORT OF

THE TEXAS FORENSIC SCIENCE

COMMISSION

WILLINGHAM/WILLIS INVESTIGATION

APRIL 15, 2011

TABLE OF CONTENTS

I. Background
A. History of the Texas Forensic Science Commission
B. National Context
C. Intersection of Science and the Law
II. Pending Jurisdictional Issues
III. Scope of the Report
IV. Complaint Background
V. Procedural History of Convictions and Appeals
A. Cameron Todd Willingham
B. Ernest Ray Willis
VI. Science and Investigation
A. Standard of Practice in 1991
B. Contemporary Standard of Practice
C. Perceived Gap in Understanding Between Fire Scientists and Fire Investigators
VII. Use of the Scientific Method
VIII. Observations Regarding Analysis of Incendiary Indicators and Alternative Causes
A. Elimination of Accidental Causes
B. Treatment of Debris
C. Pattern Indicators
1. V-Pattern as Indicator of Origin
2. Pour Patterns
3. Low/Deep Burning and Multiple Separate Points of Origin
4. Spalling
5. Burn Intensity
6. Crazed Glass
D. Confirmation of Accelerant through Laboratory Testing
E. Re-Examination of Cases
F. Eyewitness Accounts
IX. Evolution of Standards Governing Admissibility of Expert Testimony and Forensic
Evidence
X. Observations Regarding Trial Testimony
1. Suggestions Regarding Boundaries in Expert Testimony
2. Current Approach to Testimony by SFMO Investigators
3. The Role of Lawyers and Judges
XI. Recommendations
Recommendation 1: Adoption of National Standards
Recommendation 2: Retroactive Review
Recommendation 3: Enhanced Certification
Recommendation 4: Collaborative Training on Incendiary Indicators
Recommendation 5: Tools for Analyzing Ignition Sources
Recommendation 6: Periodic Curriculum Review
Recommendation 7: Involvement of SFMO in Local Investigations
Recommendation 8: Establishment of Peer Review Group/Multidisciplinary Team
Recommendation 9: Standards for Testimony in Arson Cases
Recommendation 10: Enhanced Admissibility Hearings in Arson Cases
Recommendation 11: Evaluating Courtroom Testimony
Recommendation 12: Minimum Report Standards
Recommendation 13: Preservation of Documentation
Recommendation 14: Dissemination of Information Regarding Scientific Advancements
Recommendation 15: Code of Conduct/Ethics
Recommendation 16: Training for Lawyers/Judges
Recommendation 17: Funding
TABLE OF EXHIBITS

Exhibit 1 Attorney General Opinion Request

Exhibit 2 Original FSC Complaint Form and Arson Review Committee Report

Exhibit 3 Initial FSC Complaint Notification Letter to the Corsicana Fire Department

Exhibit 4 Initial FSC Complaint Notification Letter to the State Fire Marshals Office

Exhibit 5 Corsicana Fire Departments response to the FSCs Initial Letter

Exhibit 6 State Fire Marshals response to the FSCs Initial Letter

Exhibit 7 Beyler Report

Exhibit 8 List of Documents sent to Beyler

Exhibit 9 FSC Letter to SFMO

Exhibit 10 FSC Letter to CFD

Exhibit 11 FSC Letter to the Innocence Project

Exhibit 12 Response from the SFMO

Exhibit 13 Response from the CFD

Exhibit 14 Response from the IP

Exhibit 15 Willingham v. State, 897 S.W.2d 351 (Tex. Crim. App. 1995)

Exhibit 16 Willingham v. Texas, 516 U.S. 946 (1995)

Exhibit 17 Willingham v. Texas, 524 U.S. 917 (1998)

Exhibit 18 Willingham Petition for Writ of Habeas Corpus

Exhibit 19 Willingham v. Johnson, N. 3:98-CV-0409-L, 2001 WL 1677023, at *1 (N.D. Tex. Dec.

31, 2001)

Exhibit 20 Willingham v. Cockrell, M. 02-10133, 2003 WL 1107011 (5th Cir. Feb. 17, 2003)

Exhibit 21 Willingham v. Dretke, 540 U.S. 986 (2003)

Exhibit 22 Affidavit in support of Clemency

Exhibit 23 Reply from Texas Board of Pardons and Paroles

Exhibit 24 Willis v. Cockrell, No. P-01-20, 2004 WL 1812698 (W.D. Tex. Aug. 09, 2004)

Exhibit 25 Willis v. State, 785 S.W.2d 378, 387 (Tex. Crim. App. 1989)
Exhibit 26 Willis v. Texas, 498 U.S. 908 (1990)

Exhibit 27 Willis v. Cockrell, No. P-01-CA-20, 2004 WL 1812698 (W.D. Tex. Aug. 09, 2004)

Exhibit 28 August 2010 Letter from the SFMO to the FSC

Exhibit 29 National Institute of Justices June 2000 Report

Exhibit 30 National Center for Forensic Sciences January 2008 Report

Exhibit 31 TCFPs A-List and B-List courses

Exhibit 32 Ignition Matrix

 I. BACKGROUND

A. History of the Texas Forensic Science Commission

In May 2005, the Texas Legislature created the Texas Forensic Science

Commission (FSC or Commission) by passing House Bill 1068 (the Act).

The Act amended the Code of Criminal Procedure to add Article 38.01, which

describes the composition and authority of the FSC. See Act of May 30, 2005,

79th Leg., R.S., ch. 1224, 1, 2005. The Act took effect on September 1, 2005.

Id. at 23.

The Act provides that the FSC shall investigate, in a timely manner, any

allegation of professional negligence or misconduct that would substantially

affect the integrity of the results of a forensic analysis conducted by an accredited

laboratory, facility or entity. TEX. CODE CRIM. PROC. art. 38.01 4(a)(3).

The term forensic analysis is defined as a medical, chemical,

toxicological, ballistic, or other examination or test performed on physical

evidence, including DNA evidence, for the purpose of determining the connection

of the evidence to a criminal action. Id. at art. 38.35(4). The statute specifically

excludes certain types of analyses from the forensic analysis definition, such as

latent fingerprint examinations, a breath test specimen, and the portion of an

autopsy conducted by a medical examiner or licensed physician.1

The FSC has nine membersfour appointed by the Governor, three by

the Lieutenant Governor and two by the Attorney General. Id. at art. 38.01 3.

1
For list of statutory exclusions, see TEX. CODE CRIM. PROC. art. 38.35(a)(4)(A)-(F) & (f).

2
Seven of the nine Commissioners are scientists and two are attorneys (one

prosecutor and one criminal defense attorney). Id. The FSCs presiding officer is

designated by the Governor. Id. at 3(c).

The FSCs policies and procedures set forth the process by which it

determines whether to accept a complaint, as well as the process used to conduct

an investigation once a complaint is accepted. See FSC Policies & Procedures at

3.0, 4.0. The ultimate result of an investigation is the issuance of a final report.

B. National Context

With the FSCs creation, Texas emerged as a leader among states seeking

to advance the integrity and reliability of forensic science in criminal courts.

Texas is one of only a handful of states to establish an independent agency for

forensic oversight of accredited criminal forensic laboratories. Since 2005, the

Commission has worked to meet the challenges inherent in building an agency

from scratch with no pre-existing model. The FSC operated without funding for

two consecutive bienniums; it hired its first staff member (the commission

coordinator) in June 2008 and a second (the general counsel) in December 2010.

From its inception, the Commission has been in the unusual position of

developing standards to govern its own internal processes while simultaneously

providing recommendations and coordinating accountability with other agencies.

The Commission anticipates that other states will look to Texas and its peers as

resources for developing similar forensic oversight commissions.

Current interest in improving forensic science at the national level was

prompted in part by the release of a 2009 National Academy of Sciences report

3
entitled Strengthening Forensic Science in the United States: A Path Forward

(the NAS Report). 2 The NAS Report contains thirteen recommendations

designed to improve forensic science and establish consistency and predictability.

It addresses fire science briefly in a section entitled Analysis of Explosives

Evidence and Fire Debris. (NAS Report at 170-173.) The Commission

incorporates observations from the NAS Report herein to the extent such

information is relevant and useful.

C. Intersection of Science and the Law

As the United States Supreme Court noted in its landmark decision in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) . . . there

are important differences between the quest for truth in the courtroom and the

quest for truth in the laboratory. Scientific conclusions are subject to perpetual

revision. Law, on the other hand, must resolve disputes finally and quickly. Id.

at 596-97. Despite these differences, scientists, lawyers and judges must work

together to fulfill their respective roles in the legal system. While judges and

lawyers have some exposure to forensic science, they often lack the expertise

necessary to thoroughly evaluate the reliability of forensic techniques. (NAS

Report at 85.) This places tremendous pressure on the forensic science

community to engage in continuous internal evaluation of forensic disciplines and

to strive for consistent application of modern scientific principles in the

courtroom. Id. at 110.

2
For a copy of the NAS Report, see http://www.nap.edu/catalog.php?record_id=12589.

4
 In this report, the Commission offers recommendations specific to the

forensic discipline of fire investigation, with the goal of encouraging the

consistent application of modern fire science principles. The Commission notes

that fire investigation, like many forensic disciplines, requires the exercise of

judgment by individual investigators. For example, as NFPA 921 states in its

discussion of origin determination, ultimately, the decision as to the level of

certainty in data collected in the investigation or of any hypothesis drawn from an

analysis of the data rests with the investigator. (NFPA 2008 edition at 18.6.2.)

Reasonable minds can differ on interpretive issues, and disagreements will occur

among forensic experts, including fire investigators. However, such

disagreements must be based on a shared knowledge of modern fire science and

the proper application of the scientific method as described in NFPA 921.

Ongoing training, effective dissemination of information regarding advances in

fire science, and an environment that encourages honest dialogue among

stakeholders are critical to achieving this goal.

II. PENDING JURISDICTIONAL ISSUES

Since its creation in September 2005, the FSC has received numerous

investigative requests involving various types of forensic analyses, some of which

were conducted years or decades ago. Because the FSCs enabling statute

provides limited detail regarding the scope of its jurisdiction, some interested

parties have questioned the reach of the FSCs investigative authority. For

example, during the course of this particular investigation, both the Corsicana Fire

Department (CFD) and State Fire Marshals Office (SFMO) challenged the

5
FSCs jurisdiction on the following grounds: (1) the complaint involves facts that

pre-date the existence of the FSC and the statewide process for accreditation of

laboratories, facilities or entities that test evidence for presentation in criminal

courts; (2) the Acts effective date language limits the FSCs jurisdiction over

evidence tested before September 2005; and (3) the complaint involves the

forensic discipline of fire investigation, which does not fall within the applicable

statutory definition of a forensic analysis conducted by an accredited laboratory,

facility or entity.

In light of these jurisdictional questions and the related risk of litigation,

the Commission voted at its January 21, 2011 quarterly meeting to obtain an

official legal opinion from the Texas Attorney Generals Office. (See Exhibit 1

for copy of request.) The FSC anticipates that ambiguities and conflicts over

jurisdictional issues will be addressed by the Attorney Generals office in its

response to the pending request. Legislative amendments during the 82nd Session

may also provide additional clarification.

III. SCOPE OF THE REPORT

The Commission understands the importance of issuing a report that

provides substantive recommendations designed to improve arson investigation in

Texas. In light of the jurisdictional issues discussed above and related litigation

concerns, the Commission declines to issue any finding regarding negligence or

professional misconduct pending the issuance of an Attorney General opinion

and/or legislative action during the 82nd Session. However, the FSC realizes that

there is great public interest in the resolution of the combined Willis/Willingham

6
investigation (Investigation), especially to the extent that a resolution will

contribute to the ongoing development of fire investigation in Texas. This report

sets forth the FSCs observations regarding the history and progress of fire

science, including incendiary indicators and related investigative issues. It takes a

forward-looking approach, suggesting concrete training and educational

initiatives. Observations regarding the state of fire science and suggestions for

continued advancement are not limited to the Willingham and Willis cases, but

rather apply generally to arson investigations in Texas.

This Investigation has also revealed the practical difficulties of conducting

a negligence review for a case in which there is a significant gap in time between

the FSCs consideration of the complaint and the point at which the original

forensic analysis was conducted. Both fires occurred at least two decades ago.

The substantial passage of time, limited record and the unavailability of at least

one of the original fire investigators all add to the difficulty of conducting a

thorough review.

Some Commissioners have also noted that the Willingham case has posed

a particular challenge due to the controversy surrounding the death penalty. The

FSC was not established as a commission for establishing innocence or guilt, nor

was it established as a forum for debating the merits of capital punishment. It was

established to advance the reliability and integrity of forensic science in Texas

courts. As the Texas Court of Criminal Appeals noted in a recent decision,

criticism concerning the potential for wrongful execution is an important moral

and public policy question, suitable for intense and open debate by legislative

7
policymakers. State ex. rel. Lykos v. Fine, Nos. AP-76,470 and AP-76,471 at 25

(Tex. Crim. App. Jan. 12, 2011). Neither trial judges nor judges on this Court sit

as a moral authority over the appropriateness of the death penalty. Id. The FSC

notes that the same observation applies to its role in the Willingham case.

No finding contained herein constitutes a comment upon the guilt or

innocence of any individual. A final report by the FSC is not prima facie

evidence of the information or findings contained in the report. TEX. CODE CRIM.

PROC. art. 38.01 4 (e); FSC Policies and Procedures 4.0 (d). The Commission

does not currently have enforcement or rulemaking authority under its statute.

The information it receives during the course of any investigation is largely

dependent upon the willingness of concerned parties to submit relevant

documents and respond to questions posed. The information gathered has not

been subjected to the standards for admission of evidence in a courtroom. For

example, no individual testified under oath, was limited by either the Texas or

Federal Rules of Evidence (e.g., against the admission of hearsay) or was

subjected to formal cross-examination under the supervision of a judge.

Therefore, this report does not serve as a document necessarily admissible in

court for any civil or criminal purpose. Rather, it seeks to encourage the

development of forensic science in Texas, particularly in the area of fire

investigation.

IV. COMPLAINT BACKGROUND

On August 13, 2008, the Innocence Project (IP) filed a formal complaint

with the FSC alleging professional negligence and/or misconduct in the course of

8
the arson investigations and testimony given at the trials of Cameron Todd

Willingham in 1991 and Ernest Ray Willis in 1987, including the responsibility of

the SFMO to re-evaluate opinions in light of new scientific standards. (See

Exhibit 2.)

The FSC began its investigation by soliciting initial responses from the

CFD and SFMO. (See Exhibits 3 & 4.) Both agencies submitted responses. (See

Exhibits 5 & 6.) The Commission also contracted for the professional opinion of

fire scientist Craig L. Beyler, Ph.D. Beylers final report is attached. (See Exhibit

7.) Dr. Beyler was given a cd-rom of documents provided by the Complainant

and photographs of the crime scene, along with other documents received from

the SFMO. (See Exhibit 8.)

In addition to Beylers report, the FSC solicited written comments from

independent fire science expert John DeHaan, Ph.D. and Houston Police

Department fire investigation expert Thomas Buddy Wood. In July 2010, the

Commission requested further comment from the SFMO, CFD and IP. (See

Exhibits 9, 10 & 11.) Each entity provided a response. (See Exhibits 12, 13 &

14.) The FSC also received several unsolicited comments. Since receiving the

complaint, the Commission has gathered and reviewed thousands of pages of

documents and received extensive input from fire scientists and investigators.

Commissioners have also heard public comment at numerous meetings.

On January 7, 2011, the FSC convened an expert panel during which Ed

Salazar, Assistant State Fire Marshal of the SFMO, Dr. John DeHaan, Dr. Craig

Beyler and Houston fire investigator Buddy Wood provided extensive comments

9
and responded to questions from Commissioners. The FSC also heard brief

comments from Paul Maldonado, the Texas State Fire Marshal, and Ed Cheever,

fire investigator for the SFMO.

On January 21, 2011, the FSC directed the general counsel to begin

drafting a final report.

V. PROCEDURAL HISTORY OF CONVICTIONS AND APPEALS

While the Commission relied upon documents from various phases of

litigation in these cases, the Commission does not comment on or evaluate the

appropriateness of the litigation. The procedural history is provided here simply

to give context to how the cases came before the Commission.

A. Cameron Todd Willingham

After a jury trial in the District Court of Navarro County, Texas in August

1992, Cameron Todd Willingham was convicted and sentenced to death for

killing his three children by setting fire to their home in Corsicana, Texas. For a

summary of the criminal case, see Willingham v. State, 897 S.W.2d 351 (Tex.

Crim. App. 1995). (See Exhibit 15.)

The CFD was the first to respond to the fire on December 23, 1991; CFD

investigators Doug Fogg and James Palos began reviewing the scene immediately

after fire suppression activities concluded. The CFD also contacted the SFMO for

assistance, and SFMO Deputy Fire Marshal Manuel Vasquez arrived on

December 27, 1991. Mr. Fogg is now retired from the CFD and Mr. Vasquez is

deceased. Mr. Palos is currently the Fire Marshal of the CFD.

Direct appeal. Following a mandatory direct appeal, the Texas Court of

10
Criminal Appeals affirmed Willinghams conviction and sentence. Id. at 359. A

motion for rehearing was denied on April 26, 1995. The United States Supreme

Court denied a petition for writ of certiorari. Willingham v. Texas, 516 U.S. 946

(1995). (See Exhibit 16.)

State post-conviction litigation. Willingham filed a petition for writ of

habeas corpus in state court. The Texas Court of Criminal Appeals denied the

petition for relief. Ex parte Willingham, No. 35,162 (Tex. Crim. App. 1997). The

United States Supreme Court denied a petition for writ of certiorari. Willingham

v. Texas, 524 U.S. 917 (1998). (See Exhibit 17.)

Six years later, Willingham filed a petition for writ of habeas corpus in

state court, attaching a statement challenging the fire investigation. (See Exhibit

18.) The Texas Court of Criminal Appeals denied the petition, finding that it did

not meet the legal requirements for a claim of newly discovered evidence of

actual innocence. Ex parte Willingham, No. 35,162-02 (Tex. Crim. App. 2004).

Federal post-conviction litigation. Willingham filed a petition for writ

of habeas corpus in federal court. A federal magistrate judge denied the petition,

and the federal district court judge agreed with the magistrates denial.

Willingham v. Johnson, No. 3:98-CV-0409-L, 2001 WL 1677023, at *1 (N.D.

Tex. Dec. 31, 2001). (See Exhibit 19.) A federal court of appeals agreed with the

district court. Willingham v. Cockrell, No. 02-10133, 2003 WL 1107011 (5th Cir.

Feb. 17, 2003). (See Exhibit 20.) The United States Supreme Court also denied a

petition for writ of certiorari. Willingham v. Dretke, 540 U.S. 986 (2003). (See

Exhibit 21.)

11
 Application for reprieve and commutation. On February 3, 2004,

Willingham filed an application for a temporary reprieve from the execution of

death sentence and for commutation with the Texas Board of Pardons and Paroles

and the Governors office. On February 13, 2004, an affidavit in support of

clemency was faxed to the Texas Board of Pardons and Paroles and to the

Governors office challenging the fire science in the case. (See Exhibit 22.) A

reply was filed. (See Exhibit 23.) The stay of execution was denied, and

Willingham was executed on February 17, 2004.

B. Ernest Ray Willis

After a jury trial in the District Court of Pecos County, Texas in August

1987, Ernest Ray Willis was convicted and sentenced to death for killing two

women in the course of committing arson in Iraan, Texas. For a summary of the

criminal case, see Willis v. Cockrell, No. P-01-CA-20, 2004 WL 1812698 (W.D.

Tex. Aug. 09, 2004). (See Exhibit 24.) Insurance company fire investigator John

Dailey and SFMO fire investigator Ed Cheever both testified at Willis trial.

Direct appeal. Following a mandatory direct appeal, the Texas Court of

Criminal Appeals affirmed the conviction and sentence of Willis. Willis v. State

785 S.W.2d 378, 387 (Tex. Crim. App. 1989). (See Exhibit 25.) The United

States Supreme Court denied a petition for writ of certiorari on October 9, 1991.

Willis v. Texas, 498 U.S. 908 (1990). (See Exhibit 26.)

State post-conviction litigation. On June 7, 2000, the trial court that

originally convicted Willis recommended that he be granted a new trial based on

12
ineffective assistance of counsel, withheld psychiatric profile and administration

of involuntary drugs by the State. However, the Texas Court of Criminal Appeals

disagreed and denied Willis relief on December 13, 2000.

Federal post-conviction litigation. Willis then filed a petition alleging 1)

violation of the Eighth and Fourteenth Amendments; 2) the States wrongful

administration of antipsychotic medications; 3) defense counsels ineffective

assistance at trial and sentencing phases; 4) the prosecution suppressed evidence

material to his sentencing determination; and 5) the cumulative effect of error in

all four claims violated due process. See Willis v. Cockrell, No. P-01-CA-20,

2004 WL 1812698 (W.D. Tex. Aug 09, 2004). (See Exhibit 27.) The United

States District Court for the Western District of Texas granted relief on August 9,

2004. Id. at *34-35.

Release. Willis was released from prison on October 6, 2004. The Texas

Attorney General's office declined to appeal and the District Attorney

commissioned a review of the scientific evidence in the case. The indictment

against Mr. Willis was dismissed, and he was exonerated by the State of Texas on

grounds of actual innocence.

VI. SCIENCE AND INVESTIGATION

A. Standard of Practice in 1991

After soliciting and reviewing input from numerous sources, the FSC

concludes that there was no uniform standard of practice for state or local fire

investigators in the early 1990s in Texas or elsewhere in the United States.

(DeHaan at 1.) In fact, before the release of NFPA 921 in 1992, there was no

13
single document describing the standard of practice in fire investigation. (Beyler

at 2.) Investigators relied upon the process of elimination; a cause would be

eliminated if it was inconsistent with known case facts or was not physically

possible. (Beyler at 4.)

The FSC also notes that in the early 1990s, fire investigators (including

but not limited to those in this case) relied heavily upon the teachings of their

mentors regarding the nuances involved in interpreting incendiary indicators.

Access to controlled burn experiments and other practical guidance regarding the

science of fire behavior was limited. At the national level, the NAS Report notes

the prevalence of apprenticeship training across forensic disciplines, finding that

reliance on apprentice-type training and a guild-like structure works against

predictability. (NAS Report at 15-16.) Similarly, the knowledge levels on which

fire investigation practices were based at the time were extremely variable due

to the one-on-one training that dominated. (DeHaan at 1.) The FSC has also

observed that while scientific papers and textbooks describing some of the

modern fire science principles existed in the early 1990s, it is difficult to

determine how widely those materials were disseminated, or whether they were

understood and accepted by fire investigators at the time. (Id. at 5.)

B. Contemporary Standard of Practice

The contemporary standard of practice is expressed in NFPA 921 Guide

for Fire and Explosion Investigations, published by the National Fire Protection

Association (NFPA). (Beyler at 1.) Work on NFPA 921 began in the mid-

1980s but it was not published until 1992. Id. As recognized by various experts,

14
there was a natural period of time before NFPA 921 gained universal

recognition among investigators. (Beyler at 1.) Most experts believe that it took

at least until the mid-1990s for NFPA 921 to be widely accepted. (Beyler at 1,

DeHaan at 2.) As Ed Cheever noted at the January 7th hearing, until the late

1990s the SFMO maintained only one copy of NFPA 921 at each regional office.

Today, every SFMO investigator is issued a copy of NFPA 921.

Standards in fire investigation are not static and will continue to develop

over time. For example, the NFPA recently released the 2011 edition of NFPA

921, which contains revised and enhanced standards. In addition, in 2009 the

NFPA released NFPA 1033, which suggested minimum educational requirements

for fire investigators. Many of the educational guidelines discussed in NFPA

1033 focus on specific subject areas in science. FSC recommendations regarding

adoption of NFPA 1033 are set forth in Section XI below.

C. Perceived Gap in Understanding Between Fire Scientists and

Fire Investigators

Many Commissioners are concerned about perceived differences in

understanding of fire indicators between the scientists and engineers who study

principles underlying fire indicators, and the state and local professionals who

respond to and investigate fires. One challenge is the lack of science education on

the part of many fire investigators. (DeHaan at 6.) Though this dynamic is

changing as younger classes of investigators gain exposure to college coursework

in chemistry and physics, most active investigators do not have scientific

backgrounds. Id. Those charged with teaching and training fire investigators also

bear some responsibility for ensuring that principles are communicated effectively

15
to investigators. Moreover, the FSCs experience during the course of this

Investigation shows the importance of creating an environment in which scientists

and investigators have frequent opportunities to meet and exchange their

knowledge and experience, where open and honest dialogue can occur, and where

discussion of fire scene variables and hypotheticals is encouraged.

Highlighting the perceived gap between the fire science and fire

investigation communities is the following language in the SFMOs submission to

the FSC on August 20, 2010, which was of concern to many Commissioners:

In reviewing documents and standards in place then

and now, we stand by the original investigators
report and conclusions. (SFMO Aug. Ltr. at 1.)

This appears to be an untenable position in light of advances in fire

science. The fires in these cases occurred two decades ago; there are few

circumstances in which an investigation could not be improved with the benefit of

twenty years of controlled scientific experiment and practical experience.

The Commission notes the importance of the tone and culture established

by the leadership of any organization. Leadership must engage in ongoing

internal review to ensure that information regarding scientific advancement is

disseminated properly, and mistakes (if they occur) are identified and corrected in

a timely manner. Specific recommendations regarding these issues are set forth in

Section XI below.

The SFMO has expressed a willingness to work with the Commission in

developing methods for improving training for fire investigators in Texas.

16
 VII. USE OF THE SCIENTIFIC METHOD

The 1995 edition of NFPA 921 described fire investigation as a complex

endeavor involving both art and science. (NFPA 921, 1995 edition at 2-1.). The

basic methodology of fire investigation relies on the use of a systematic approach

(i.e., the scientific method as described in NFPA 921) and attention to all relevant

detail. (Id. at 2-2). While earlier editions of NFPA 921 described six steps in

applying the scientific method to fire investigation, the 2008 edition of NFPA 921

describes eight. (NFPA 921, 2008 edition at 4.3.1-4.3.8.)

One of the primary goals of the scientific method is to detect and

minimize investigator bias. (NAS Report at 112.) The FSC emphasizes the

importance of applying these principles to fire investigation. The law assumes

that every person is innocent until proven guilty, and the use of the scientific

method in fire investigation helps to ensure the viability of this principle.

As indicated by Buddy Woods comments at the January 7th expert panel,

todays fire investigators are trained to apply the scientific method as set forth in

NFPA 921. However, most investigators do not have access to the resources used

by fire scientists to examine a range of controlled hypothetical scenarios. As the

NAS report notes, scientists operating in laboratory settings are in a position to

continually observe, test and modify the body of knowledge before them. (NAS

Report at 112.) Most fire stations do not have controlled burn facilities attached

in which investigators can test various hypotheses. Many fire investigators gain

their experience by examining scenes that have already been burned. (DeHaan at

3.) In a laboratory, a scientist can vary conditions in order to isolate exclusive

17
effects and understand how various factors influence outcomes. (NAS Report at

112.) The FSC notes that progress achieved by fire scientists in laboratories must

be better communicated to those charged with responding to actual fires and

conducting real-time investigations.

In sum, the Commission makes the following observations about the

scientific method as applied to fire investigation in Texas: (1) fire investigators

must apply the scientific method described in NFPA 921 to all investigations; (2)

training courses must explain what that means on a practical level to ensure that

principles are applied properly, and (3) fire investigators (especially those

working in smaller communities) should have more opportunities to participate in

and learn from controlled burn exercises and related experiments in conjunction

with scientific training. See Section XI below for specific recommendations

regarding these observations.

VIII. OBSERVATIONS REGARDING ANALYSIS OF INCENDIARY

INDICATORS AND ALTERNATIVE CAUSES

The FSC recognizes that the value of various incendiary indicators and the

manner in which they are identified and evaluated have changed since the

Willingham and Willis investigations were conducted. Similar progress has been

made in the evaluation of potential accidental causes. The Commissions primary

concern is to ensure that todays fire investigators have a comprehensive

understanding of how to accurately interpret incendiary indicators and understand

their limitations. The FSC appreciates the feedback it has received from local

investigators indicating a strong desire to participate in scientific training focused

18
on practical application, including participation in live burn exercises. Specific

recommendations regarding training in this area are set forth in Section XI below.

A. Elimination of Accidental Causes

A critical component of successful fire investigation is the elimination of

accidental causes. The elimination of any single cause requires an investigator to

use his or her judgment, and to request outside assistance when necessary. For

example, when considering whether a child could have set the fire in the

Willingham case, investigators concluded that the possibility was remote

considering the ages of the children, the fact that no lighters were found near them

and that a childs gate blocked the bedroom doorway. This is the sort of judgment

that fire investigators typically must engage in during the course of an

investigation. Investigators would be required to make a similar judgment call

today if the same facts were presented.

However, other components of assessing accidental causes have been

assisted by developments in science and engineering over the last two decades.

For example, scientists and engineers have created methods that allow

investigators to conduct a more thorough review of possible electrical malfunction

as a point of origin. In the early 1990s, investigators routinely checked for shorts

in the line after pulling the electrical meter for the safety of those on the scene,

in accordance with the safety requirements of NFPA 921. (See NFPA 921, 1995

edition at 10-2.4.) If there were no shorts in the line and no evidence of appliance

malfunction, investigators concluded that the cause was not attributable to

electrical malfunction.

19
 Todays investigators have additional tools at their disposal. For example,

investigators can use the process of arc mapping (See 2011 edition of NFPA 921)

to determine a fires possible point of origin. Many local investigators are aware

of the arc mapping process and often consult electrical engineers for assistance.

The FSC understands that the most likely source for engineering expertise in

many fire investigations would be the homeowners insurance company. As of

this report, the SFMO no longer has an electrical engineer on staff due to

budgetary constraints.

While the Commission is not in a position to assess whether having an

electrical engineer on staff is critical to the SFMOs mission, Commissioners note

that the SFMO should consider cost-effective alternatives for consulting electrical

experts as needed. In the case of electrical systems, investigators must know how

to conduct a thorough initial evaluation and to identify when an engineer should

be requested. Commissioners also note the importance of ensuring sufficient

technical support for smaller, more remote communities where investigative

resources are limited.

In sum, investigators must be trained to employ methods for eliminating

accidental causes that effectively review all facts and circumstances within the

framework of the scientific method. Specific recommendations regarding training

in this area are discussed in Section XI below.

B. Treatment of Debris

The investigators in both cases have been criticized for not considering

fire debris on the scene and simply shoveling the debris out the window.

20
(Beyler at 29). Because the treatment of debris is an extremely important

component of any fire investigation, the Commission conducted further inquiry

into how debris was handled in the Willingham case, and whether any changes

have been made in treatment of debris over the last two decades. Although the

CFD informed the Commission that a thorough examination was conducted, the

documentation provided to the District Attorney no longer exists.

The Commissions primary concern is that todays fire investigators

thoroughly understand how to properly evaluate, review, photograph, document

and remove debris. NFPA 921 addresses the treatment of debris in detail (NFPA

921, 2008 edition at 17.3.2 et seq.) and investigators must be regularly trained and

updated on proper treatment and documentation of debris. Even assuming that

proper debris analysis and removal was conducted in a case, if the record does not

document investigative steps properly, investigators leave themselves open to

tremendous scrutiny. Specific recommendations regarding improvements in

documentation are set forth in Section XI below.

C. Pattern Indicators

As previously stated, the Commission recognizes that the value of various

incendiary indicators and the manner in which they are identified has changed

since the early 1990s. Experts have identified indicators that were present in the

Willingham and Willis cases that have since undergone extensive scientific

testing and experimentation. Such testing has provided scientists with a better

understanding of the limitations of the indicators. The Commission further

recognizes that many of these indicators may be present in arson cases where

21
accelerants are used, thus requiring an investigator to use the scientific method as

expressed in NFPA 921 to conduct a systematic review. The discussion does not

examine every indicator used in the investigators reports but rather includes

illustrative examples applicable to all arson cases. Excerpts from fire scene

reports and trial testimony, though inherently incomplete, provide a sense of the

investigators understanding of incendiary indicators at the time of trial. Excerpts

from the reports of Drs. Craig Beyler and John DeHaan provide examples of the

manner in which the fire science and investigation communitys understanding of

these indicators has changed since the early 1990s. The question of when, why

and how certain limitations should be applied to incendiary indicators is the

subject of ongoing study by the fire science community.

1. V-Pattern as Indicator of Origin

Deputy Fire Marshal Vasquezs report discusses V-patterns as an

indicator of fire origin. The report states:

The burn pattern on the east and west wall of the hallway disclosed a
gradual climb in a 45 degree angle toward the south end and clearly
showed a V pattern. This V pattern is an indicator that the fire
originated on the floor near the north end. (Vasquez Report at p. 2.)

The north end area of the floor disclosed that the fire had burned through
the tile blocks and caused charring of the wooden floor underneath. The
burn pattern on the floor and V burn patterns on the walls is an
indication that a fire originated at the north end area of the center hallway.
(Vasquez Report at p. 2.)

Deputy Fire Marshal Vasquez also testified regarding V patterns as

follows:

The photograph that sees the V pattern debris, thats Exhibit No. 23. The
one that tells where the V is, thats possible origin of the fire.
(Willingham Transcript p. 240, line 3-5.)

22
 In the early 1990s, many fire investigators based their conclusions of

origin in part on the theory that a V-pattern on a wall points to the origin of the

fire. For example, the 1995 edition of NFPA 921 4-17.1 stated: the angled lines

of demarcation, which produce the V pattern, can often be traced back, from the

higher to lower levels, toward a point of origin. The low point or vertex of the

V may often indicate the point of origin. NFPA 4-17.1 (1995 edition).

Scientists now know that the V-pattern simply points to where something was

burning at some stage of the fire, not necessarily the origin. (DeHaan at 8.)

2. Pour Patterns

Deputy Fire Marshal Vasquez testified as follows regarding his

interpretation of pour patterns in the Willingham home:

So this area right here are what I call burn trailers. Burn trailers is like a
trailer, you know, like a little path, a burnt path. A pour pattern, which is
a pattern like somebody put some liquid on the floor or wherever and, of
course, when you pour liquid, then it creates a puddle. Liquid creates
puddles. When it rains you get puddles. When the baby drops its milk,
you create puddles. If you ever drop a coke, you create puddles. All this
area has that, has the burn trailer pour patterns and configurations. This
area right here, which is right here almost in front of this bed is deep
charred. The floor, it didnt burn through the floor, but it burned the three
layers of the floor. And a pour pattern and trailer is an indication that
somebody poured something, you know, either going in or out.
(Willingham Transcript p. 238, line 16p. 239, line 6.)

All fire goes up. All water goes down. Or any liquid goes down unless
man changes the course. (Willingham Transcript p. 232, lines 16-18.)

Fire Investigator Cheever also testified regarding his interpretation of pour

patterns in the Willis case:

It appears to be burned areas resembling how a liquid would have run and
burned on that surface. (Answer in response to a question regarding
irregular floor patterns.) (Willis Transcript p. 31, line 10.)

23
 I have never run across that, no, sir. (In response to the following
question: Now, in your experience, training, and your reading
publications to keep up-to-date, have you or have you not heard of the
phenomenon that radiation can cause irregular patterns?) (Willis
Transcript p. 128, lines 4-8).

Thats correct. (In response to counsels assertion that fire burns up,
not down.) (Willis Transcript p. 93, line 6).

In the early 1990s, many fire investigators reasoned that fire moves

upward (at least flames and hot gases do) and that carpet and flooring is difficult

to ignite. (DeHaan at 7.) If one pours ignitable liquid on a floor, the carpet burns

away in an irregular path similar to the deposits of the liquid. Id. Thus, it was

often thought that pour patterns at floor level were nearly proof alone that the

fire was started with an accelerant. Id. While such a fire could have been started

with an accelerant (see e.g., NFPA 921 1995 edition, 4-17.7.2) other phenomena

of fire behavior can also cause similar pour-like patterns.

For example, when a fire approaches or surpasses flashover conditions, all

of the exposed carpet in the room will ignite. (DeHaan at 7.) Synthetic carpets

and pads melt or decompose to liquid as they burn, producing highly irregular and

unpredictable patterns. (DeHaan at 8.) The effect of ventilation conditions,

radiant heat, flaming and smoldering debris, and drop-down burning from things

like synthetic mattresses and bedding also affect the irregular burn patterns.

(Beyler at 8, DeHaan at 7-8.)

Today, fire scientists and investigators should have a better understanding

of the nuances of flashover conditions, including how to analyze their effects.

Rigorous, ongoing training is the key to ensuring that all investigators in Texas

are knowledgeable about developments in the scientific communitys

24
understanding of the complex chemical and physical phenomena involved in fires,

including but not limited to the effects of flashover.

3. Low/Deep Burning and Multiple Separate Points of Origin

Deputy Fire Marshal Vasquez testified as follows regarding his

interpretation of low/deep burning and multiple separate points of origin:

And you got char burning, like for example, this is the bottom here. Its
burned down here at the bottom. That is an indicator in my investigation
of an origin of fire because its the lowest part of the fire. (Willingham
Transcript p. 239, lines 20-24.)

Multiple areas of origin indicateespecially if there is no connecting

path, that they were intentionally set by human hands. (Willingham
Transcript p. 255, lines 19-21.)

The first incendiary indicator is the auto ventilation. The inconsistency of

the fire going out of this window and the fire going out of the door and
this window here. Thats inconsistent with fire behavior. Thats an
indicator that its a possible incendiary fire. Okay. Puddle configurations,
pour patterns, low char burning, charred floor, the underneath burning of
the baseboard, the brown stains on the concrete, the underneath of the bed,
because of the fire right underneath the bed, puddle configurations in that
area, and the total saturation of this floor is indicated with pour patterns,
because thats all Im doing is looking at the facts, at the evidence.
(Willingham Transcript p. 255, lines 20-25.)

Fire Investigator Cheever also noted low burn as a significant indicator in

the Willis case as follows:

Initially, when we had finished the view of the exterior of the building and
walked into the inside of the structure, there were a couple of things that
caught our attention right off. First of all, the low burning on the walls
almost to floor level. (Willis Transcript p. 11, line 9.)

The most highly significant would be the low burning to the floor level on
some of the walls, and the burn patterns that I observed on the floor itself.
(Willis Transcript p. 14, line 4.)

In my opinion, there was some type of flammable liquid applied there.

There was no other fuel source there that would have indicated it would
have burned in that manner. (Willis Transcript p. 35, line 7.)

25
 Low burn patterns may be an indicator of accelerant (Beyler at 8), but

scientific experiments have also shown that radiant heat transfer causes low burn

patterns (Id.), and that the radiant heat of a fully involved room fire can be

sustained to penetrate floors deeply. (DeHaan at 8.) Scientific testing has also

shown that ignitable liquids alone do not burn long enough to penetrate floors

deeply. (Id.) Similarly, the appearance of multiple separate points of origin may

provide evidence that a fire was intentionally set, but is often attributable to

radiation and drop down effects. (Beyler at 14.)

Today, fire scientists and investigators should have a better understanding

of the nuances of low burn and deep burn patterns, as well as the various factors

that create the appearance of separate multiple points of origin. Continuous,

targeted education regarding these indicators will ensure that investigators

understand and effectively analyze the extent to which patterns are attributable to

accelerant and/or other factors.

4. Spalling

Deputy Fire Marshal Vasquezs report includes an assessment of spalling

evidence as follows:

The examination of the porch concrete floor disclosed an area of brown

discoloration at the base of the north wall and in front of the door to the
central hallway. This discoloration, or brown condition, is also an
indication that a liquid accelerant burned on the concrete. (Vasquez
Report at p. 4.)

Spalling (i.e., brown discoloration) occurs when concrete, masonry or

brick is exposed to a high rate of heating by flame or high levels of radiation from

fuel. (SFMO at 5, citing NFPA 921 1995 edition at 4-6.1.) Controlled laboratory

26
experiments have shown that while spalling may be caused by burning accelerant,

it is more often caused by sustained heat from other sources. (Beyler at 11,

DeHaan at 5.) It is critical that todays investigators understand how to properly

analyze spalling evidence. For example, investigators should identify appropriate

samples of adjacent materials and send those materials for laboratory testing to

determine whether accelerant is present.

5. Burn Intensity

Deputy Fire Marshal Vasquez testified as follows regarding his

interpretation of burn intensity:

And aluminum melts at 1200 degrees normal. Wood fire does not exceed
800 degrees. So to me, when aluminum melts, it shows me that it has had
a lot of intense heat. It reacts to it. That means its temperature is hot. The
temperature cannot react. Therefore, the only thing that can cause that to
react is an accelerant. You know, it makes the fire hotter. Its not normal
fire. (Willingham Transcript p. 249, lines 9-16.)

So when I found that the floor is hotter than the ceiling, thats backwards,
upside down. It shouldnt be like that. The only reason that the floor is
hotter is because there was an accelerant. Thats the difference. Man
made it hotter or woman or whatever. Human being made it hotter.
(Willingham Transcript p. 256, lines 17-22.)

The fire, itself, tells me that its a very aggressive fire; and, therefore, the
fire was not a planned fire. It was a spur-of-the-moment fire. (Willingham
Transcript p. 72, lines 14-16.)

In the early 1990s, the widely held belief among fire investigators was

that the flames of a wood-fueled fire are cooler than those fueled by petroleum

products. (DeHaan at 8.) Thus, investigators would often conclude that a hot

fire must have had an accelerant ignition. (Id.) Scientists now know that flame

temperatures for normal fuels against liquid fuels are similar, and compartment

temperatures alone cannot be used to distinguish whether ordinary or liquid fuels

27
were involved. (Beyler at 12, DeHaan at 4.) It is critical that todays fire

investigators understand the significance of flame temperature and heat release

rates, and how these factors should be viewed within the context of other

indicators.

6. Crazed Glass

Crazing is a term used in the fire investigation community to describe a

complicated pattern of short cracks in glass. (SFMO at 4 citing NFPA 921 1995

at 4-13-1.) Deputy Fire Marshal Vasquez made the following statement regarding

crazed glass in his report in the Willingham case:

The pieces of broken window glass on the ledge of the north windows to
the northeast bedroom disclosed a crazed spider webbing condition. This
condition is an indication that the fire burned fast and hot. (Vasquez
Report at p. 4.)

Crazing is the result of the rapid cooling of glass in a hot environment by

the application of water spray. (Id. citing NFPA 921 1992 at 4-13.1.) Fire

scientists and investigators have concluded that it no longer has any value as an

indicator. As the SFMO explained at the January 7th panel, todays investigators

should not mention the presence of crazed glass in a fire scene report. If crazed

glass were mentioned, corrective action would be taken immediately.

The Commission observes that incendiary indicators, including but not

limited to those discussed above, are subject to numerous variables that require

continuous study and evaluation. Scientific understanding of the indicators has

continued to advance as additional experiments are conducted. Training must

ensure that fire investigators clearly understand all incendiary indicators and their

limitations, including the possible effects of phenomena such as flashover and

28
associated radiation, ventilation, smoldering debris and drop-down effects. The

FSC observes that whatever training is provided must include an environment in

which investigators and scientists are free to exchange information and engage in

honest and open dialogue regarding fire behavior and incendiary indicators.

Specific recommendations are set forth in Section XI below.

D. Confirmation of Accelerant Through Laboratory Testing

In the Willis case, ten samples were sent for testing. None of the samples

tested positive for accelerant. (Beyler at 26.) In the Willingham case, an

unspecified number of samples were sent for testing, and one (under the

aluminum threshold of the front door) tested positive for accelerant. (Beyler at

41.)

At the time these cases occurred, positive laboratory results were accepted

if they were available, but they were not considered necessary to reach the

conclusion that the fire involved intentional use of an accelerant. (Beyler at 13.)

As technology advanced, fire scientists and investigators developed a better

understanding of the importance of confirmatory testing. Experts have also noted

that technology used in gas chromatography/mass spectrometry and other

laboratory testing is more sensitive today than it was in the early 1990s. As a

result, laboratory tests are better able to detect evidence of accelerant than they

were two decades ago. Due to the passage of time, re-testing of samples taken in

the Willis and Willingham cases is not an option.

The FSC notes that laboratory testing is relied upon more heavily today

due to improvements in technology and enhanced expectations of lawyers and

29
judges. Fire investigators should have a thorough understanding of the

importance of laboratory testing as a tool for confirming the theory of a case,

especially where arson is suspected.

E. Re-Examination of Cases

The evolution of fire science and standards of practice raises the question

of whether or not an obligation exists to re-evaluate cases if those changes have

the potential to materially affect the results or opinions rendered. The FSC

learned through its Investigation that neither the SFMO nor the CFD notified any

judicial or prosecutorial authority that the standards of arson investigation had

changed over 1991 to 2004. In an August 2010 response to a request for

information from the FSC, the SFMO stated that it began referencing and

receiving training on NFPA 921 almost immediately after its initial publication in

1992. (See Exhibit 28.)

F. Eyewitness Accounts

Eyewitness interviews, while not typically scientific in nature, are a

critical component of NFPA 921s investigative guidelines. For example, the

1995 edition of NFPA 921 provided guidance to investigators regarding the

purpose of interviews (to gather both useful and accurate information). (NFPA

921 at 7-4.1.) The document also distinguished between three categories of

interviews: (1) Interviews with Those You Can Approach with an Attitude of

Trust; (2) Interviews with Those You Must Approach with Caution; and (3)

Interviews with Those You Must Approach with an Attitude of Distrust. (Id. at

7-4.4, 7-4.5, 7-4.6.)

30
 Investigators in the Willingham case interviewed numerous witnesses.

Without commenting on the weight of any particular eyewitness account, the

Commission notes that fire investigators will continuously be expected to

interview eyewitnesses and assess their credibility. While eyewitness testimony

plays a valuable role in the criminal justice system, it is a product of human

memory, which has inherent limitations. Many Commissioners believe it is

important to note these limitations and the associated need for ongoing training in

methods for properly conducting and evaluating eyewitness interviews during

arson investigations. Arson investigators should receive training in current

techniques that encourage objectivity in witness interviews. They should also

record the interviews so that they are subject to future review. Specific

recommendations are provided in Section XI below.

IX. EVOLUTION OF STANDARDS GOVERNING ADMISSIBILITY

OF EXPERT TESTIMONY AND FORENSIC EVIDENCE

Before Federal Rule of Evidence (FRE) 702 was adopted in 1975, many

courts in the United States followed a general acceptance standard for admitting

scientific expert testimony. Frye v. United States, 54 App. D.C. (1923). Under

this standard, testimony was admitted if its scientific basis was generally

accepted by the scientific community. With the adoption of FRE 702, expert

testimony was permitted if the information would assist the trier of fact. After

FRE 702 was adopted, many courts struggled with the question of whether the

rule included or rejected the concept of general acceptance set forth in Frye.

When the Willingham and Willis cases were tried, Texas courts allowed

expert testimony and scientific evidence to be admitted if the information would

31
assist the trier of fact under Texas Rule of Evidence 702, which was based on

FRE 702 and had been adopted in 1986. Kelly v. State, 824 S.W.2d 568, 572

(Tex. Crim. App. 1992). Most expert testimony, including that of fire experts and

investigators, was readily admitted into evidence, and the jury was then allowed

to assign varying degrees of weight to the testimony depending upon perceptions

of credibility. The judge did not make a preliminary determination of reliability

or relevance outside the presence of the jury.

In 1992, the Texas Court of Criminal Appeals explicitly rejected Frye and

required courts to determine whether evidence is reliable and relevant to help the

jury in reaching accurate results. Id. Though Kelly provided stricter criteria for

admitting expert testimony and forensic evidence, it did not provide a specific

mechanism for screening evidence and testimony outside the presence of the jury.

A year after Kelly was issued by the Texas Court of Criminal Appeals, the

United States Supreme Court also rejected the Frye standard in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Similar to the

enhanced requirements set forth in Kelly, Daubert required a stricter standard than

the general acceptance standard set forth in Frye. The Court explained that

judges must make an initial determination regarding the evidence or testimonys

reliability. It was then that judges began to assume the role of gatekeepers for

expert testimony, much of which is scientific or otherwise highly technical in

nature. The Texas Supreme Court also adopted the Daubert standard explicitly in

1995, requiring that scientific evidence and related testimony must not only be

32
relevant but must also have a reliable, underlying scientific validity. E.I. du Pont

de Nemours & Co. v. Robinson, 923 SW2d 459 (Tex. 1995).

The standards set forth in Daubert, Kelly and similar cases require expert

witnesses to understand and describe the science behind their conclusions before

they are allowed to testify to a jury regarding those conclusions. Though many

fire investigators could describe complex fire science principles before Daubert,

not everyone agreed on the scientific nature of fire investigation. (DeHaan at 6.)

For example, the International Association of Arson Investigators (IAAI) filed

an amicus curiae brief in Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137

(1999) arguing that fire investigation was not strictly based on science and

therefore investigators should be exempt from the judicial expectation. Id. The

IAAIs arguments were eventually rejected and fire investigators are now

expected to be able to demonstrate their methods, rationale, and scientific

expertise. Id.

The Commission observes the importance of conducting admissibility

hearings in arson cases. In light of the continuously evolving nature of fire

science, it is imperative that judges provide a meaningful opportunity for each

side to establish the relevance and reliability of fire science methodology before

testimony is admitted. FSC recommendations regarding enhanced admissibility

hearings (i.e., Daubert/Kelly hearings) for arson cases are set forth in Section XI

below.

33
 X. OBSERVATIONS REGARDING TRIAL TESTIMONY

As discussed above, when the Willingham and Willis cases were tried,

Daubert had not yet been issued, and judges had yet to assume a gatekeeping role

for the admission of scientific testimony outside the presence of the jury. As the

CFD noted in its submission to the FSC, Daubert and subsequent Texas cases (see

e.g., E.I. du Pont de Nemours v. Robinson, 923 S.W.2d 549 (Tex. 1995)) provided

a mechanism for lawyers to challenge expert testimony in cases where they

perceived the evidence to be unreliable. (CFD at 3.)

Some Commissioners have raised concerns about the tone and scope of

expert testimony in arson cases; examples from the Willingham case may be used

as an educational tool for todays fire investigators. As a threshold matter, a

review of trial testimony offers an incomplete snapshot of an underlying fire

investigation. Most testifying experts know from experience that the pace and

tone of testimony is often dictated by counsel and is subject to the judges ability

to control the courtroom effectively. As noted in the NAS Report, the adversarial

process relating to the admission and exclusion of scientific evidence is not well-

suited to the task of finding scientific truth, due in large part to the fact that

lawyers and judges have very limited exposure to scientific principles (NAS

Report at 12.) Testifying experts must continuously strive to ensure that their

testimony is communicated clearly and accurately, even under the pressures of

heated cross-examination.

The NAS Report also observes that there is a need to develop consensus

within forensic fields about the precise meaning of terms used to describe a

34
particular forensic analysis. The use of vocabulary can have a profound effect on

how the trier of fact perceives and evaluates evidence. (NAS Report at 185.)

Even today, few disciplines have developed common vocabulary for use in

reporting results in the courtroom. Where such developments have occurred, they

are not standard practice. (Id. at 186.) Courtroom testimony must be presented in

a way that allows the jury to understand and properly weigh and interpret

testimony. Id. In the early 1990s, fire investigators did not receive instruction

on what vocabulary to use in describing the phenomena of fire behavior.

Developing minimum standards for reporting (See recommendations in Section

XI below) should provide fire investigators with a foundation from which to

develop consistent methods for discussing indicators in court.

The Commission is still in the process of determining whether and to what

extent trial testimony should be considered as part of the forensic analysis

reviewed during FSC investigations. Accordingly, the discussion below uses

illustrative examples to suggest appropriate boundaries for expert testimony. It

also includes a review of concrete steps taken by the SFMO to educate and

support fire investigators who testify in courts today, as well as commentary on

the roles of judges and lawyers.

1. Suggestions Regarding General Boundaries in Expert Testimony

As an initial observation, the FSC notes that testimony must be viewed in

context. For example, Deputy Fire Marshal Vasquez made statements at the

Willingham trial such as The fire tells a story. I am just the interpreter, and

The fire does not lie. It tells me the truth. During the FSCs January 7th

35
hearing, Buddy Wood indicated that this language was commonly used at the time

by instructors at training seminars, and was even used in written materials

distributed during training sessions. Conversations with other investigators who

were active during that period confirm that the language is consistent with their

recollection of common terms used by experts to describe fire behavior. In fact,

investigators have observed that this language reflects verbatim what they were

taught in training courses. This example highlights the importance of establishing

consensus within the field on a common vocabulary for explaining fire dynamics

so that testifying experts have clear guidelines to rely upon on when explaining

concepts to a lay jury.

Other testimony, such as Vasquezs response to a question regarding

Willinghams state of mind, is an example of the type of testimony that experts

should avoid as falling outside of their field of expertise. As the CFD noted in its

submission to the FSC, Vasquez could not read Todd Willinghams mind.

(CFD at 4.) Defense counsel did not object to the question, and the judge did not

interject with an instruction to the jury. This testimony might have been

permitted before Kelly, Daubert and Robinson, but would likely be limited under

the stricter standards established by those cases. The Commission observes that

todays testifying experts must understand when and how to resist counsels

attempts to push testimony beyond measurable facts and scientific principles.

Another example is the statement that in the 1200-1500 fires Vasquez

investigated, almost all of them were arson. Discussion at the January 7th panel

indicated that the SFMO is usually called to the scene in cases where arson is

36
already suspected by local investigators, which would result in a higher number of

arson cases than one might ordinarily expect. Scientists on the Commission have

noted that this dynamic raises concerns about cognitive bias similar to those

observed in other areas of forensic science. As discussed in the NAS Report,

human judgment is subject to many different types of biases. (NAS Report at

122.) For example, in the Madrid bombing case, an FBI fingerprint analyst

identified a man named Brandon Mayfield as a positive match based on a latent

print found at the scene. The FBI later determined that once the fingerprint

examiner had declared the first match, both he and the other examiners who were

aware of the finding were influenced by the urgency of the investigation to

confirm the first match during the second review. (NAS Report at 123.) As the

NAS Report observes, cognitive biases are not the result of character flaws;

instead, they are common features of decision-making. Id. at 122.

The FSC recognizes that ideally, all biases would be removed and

complete independence would be ensured in all investigative settings. However,

in an environment where there are limited resources to conduct fire investigations,

the SFMO will continue to be called upon to assist with complex investigations in

which cause and origin are difficult to determine and arson is suspected. While

fire investigators do not have any direct incentive to reach a finding of arson, they

will continue to be subject to intense pressure by counsel to make certain

statements at trial. The following section discusses one approach the SFMO has

taken to minimize any perception of bias for cases in which it is called to the

37
scene by local investigators and subsequently required to testify in court regarding

the investigation.

2. Current Approach to Testimony by SFMO Investigators

The SFMO has taken steps to ensure that its investigators understand and

recognize possible bias and observe appropriate boundaries when testifying in

court. For example, in the last few years, the SFMO began conducting mock

trials with its investigators. Attorneys who participate in the mock trials attempt

to force investigators to cross the line into testimony that may not be supported

by the facts or scientific analysis, but is difficult to resist in a highly pressurized

environment. The SFMO conducts these mock trials in a peer review setting,

thereby encouraging active dialogue among investigators regarding the specifics

of each examination. While these mock trial programs have been effective, their

reach is limited. The Commission makes recommendations regarding expansion

of this program in Section XI below.

3. The Role of Lawyers and Judges

The responsibility for ensuring that scientific testimony is accurately and

clearly communicated to the jury does not rest with testifying experts alone.

Currently, lawyers and judges in Texas are not required to take any forensic

science training as part of their continuing legal education. The legal system

relies heavily on forensic science evidence in criminal prosecutions, and the FSC

anticipates that such reliance will only increase. As the NAS Report notes,

judges, lawyers, and law students would all benefit from a greater understanding

of the scientific bases underlying forensic science disciplines and how the

38
underlying scientific validity of techniques affects the interpretation of findings.

(NAS Report at 218.) The FSC includes specific recommendations on training of

lawyers and judges in Section XI below.

XI. DRAFT RECOMMENDATIONS

The Commission makes seventeen recommendations below regarding

initiatives designed to improve arson investigation in Texas. Though these

recommendations have arisen from the arson investigations in this case, they are

applicable to all fire investigation activities statewide. The Commission

recognizes that each recommendation is dependent upon the willingness and

ability of stakeholders to implement the recommendation. To that end, the

Commission requests that the SFMO (in collaboration with the Texas

Commission on Fire Protection (TCFP) and other appropriate stakeholders)

review the recommendations provided below, in conjunction with any other

national best practices (see examples cited) and develop its own near and long-

term strategic plan. Any existing SFMO strategic plans or relevant initiatives

should be incorporated. The plan should include an assessment of resources and

highlight any gaps that could prevent stakeholders from implementing

recommendations and best practices. The plans timeline should be aggressive

but flexible to encourage effective implementation.

RECOMMENDATION 1: ADOPTION OF NATIONAL

STANDARDS

The FSC recommends that fire investigators adhere to the standards of

NFPA 921. The SFMO has indicated a willingness to improve standards and

public confidence in fire investigation techniques. The Commission recommends

39
that all SFMO fire investigators adhere to the standards of NFPA 921 and serve as

a model to other local fire investigators.

The FSC notes that laboratory testing on fire debris admitted into evidence

in Texas courts is already subject to accreditation. For example, the SFMO

laboratory that reviews fire debris is accredited through the American Society of

Crime Laboratory DirectorsLaboratory Accreditation Board (ASCLD

LAB). At this time, there are no plans to accredit the broader field of fire

investigation. One obvious benefit of accreditation is that it provides an agency

with an ongoing mechanism for assessing internal performance and implementing

best practices.

While accreditation may not be appropriate for fire investigation, the

Commission recommends that the SFMO work in collaboration with TCFP and

other agencies to develop its own strategic plan setting forth best practices in fire

investigation. The plan should meet the recommended national standards that

exist at the time it is completed. Examples of guiding documents for current

standards include but are not limited to the current edition of NFPA 921, NFPA

1033, the National Institute of Justices June 2000 report entitled Fire and Arson

Scene Evidence: A Guide for Public Safety Personnel (See Exhibit 29); and the

National Center for Forensic Science (Carl Chasteen), and Technical/Scientific

Working Groups January 2008 report entitled Fire and Explosion Investigations

and Forensic Analyses: Near-and Long-Term Needs Assessment for State and

Local Law Enforcement. (See Exhibit 30.)

40
 RECOMMENDATION 2: RETROACTIVE REVIEW

Accredited disciplines of forensic science have standards that promote the

re-examination of cases when science has evolved to create a material difference

in the original analysis or result. Those standards include: (1) duty to correct; (2)

duty to inform; (3) duty to be transparent; and (4) implementation of corrective

action. The SFMO should develop similar standards.

If new scientific knowledge develops over time that would materially

change the opinions or results in a criminal investigation, the individual or agency

has a responsibility to inform the parties involved or develop procedures for doing

so.

RECOMMENDATION 3: ENHANCED CERTIFICATION

The primary mechanism for training and educating fire investigators in

Texas is individual certification. The certification process is administered by the

TCFP. Texas has two separate certification titles for fire protection personnel:

fire investigator and arson investigator. The main difference between the two is

that an arson investigator must be certified both as a fire investigator and as a

peace officer. The Texas Commission on Law Enforcement Officer Standards

and Education (TCLEOSE) administers peace officer certification. Below is a

summary of requirements for the four existing certification levels: basic,

intermediate, advanced and master.

41
CLASS FIRE INVESTIGATOR ARSON INVESTIGATOR

Basic Completion of a TCFP-approved basic Peace officer license from

training program; and TCLEOSE or federal equivalent;
and
Successfully passing the TCFP
certification exam for fire investigators. Accreditation from International
Fire Service Accreditation
Congress as fire investigator or
TCFP- approved basic fire
investigation certificate.
Intermed. Prerequisite of basic fire investigator Prerequisite of basic arson
certification; and investigator certification; and

4 years of fire protection experience 4 years of fire protection

and either: experience and either:

6 semester hours of fire science or fire 6 semester hours of fire

technology from an approved Fire science or fire technology
Protection Degree Program; or from an approved Fire
Protection Degree Program; or
Acceptable combinations of
coursework from either A-List or Acceptable combinations of
B-List courses (See Exhibit 31); or coursework from either A-
List or B-List courses; or
Acceptable combination of college
courses with either A-List or B- Acceptable combination of
List courses. college courses with either
A-List or B-List courses.
Advanced Prerequisite of intermediate fire Prerequisite of intermediate
investigator certification; and arson investigator certification;
and
8 years of fire protection experience and
either: 8 years of fire protection
experience and either:
6 semester hours of fire science or fire
technology from an approved Fire 6 semester hours of fire
Protection Degree Program; or science or fire technology
from an approved Fire
Acceptable combinations of Protection Degree Program;
coursework from either A-List or or
B-List courses; or
Acceptable combinations of
Acceptable combination of college coursework from either A-
courses with either A-List or B- List or B-List courses; or
List courses.

42
 Acceptable combination of
college courses with either
A-List or B-List courses.
Master Prerequisite of advanced fire investigator Prerequisite of advanced arson
certification; and investigator certification; and

12 years fire protection experience; and 12 years fire protection

experience; and
60 college semester hours or an
associates degree that includes at least 60 college semester hours or an
18 hours in fire science subjects. associates degree that includes
at least 18 hours in fire science
subjects.

A. Continuing Education Requirements

Texas fire and arson investigators are required to maintain their

certification by participating in at least 20 hours of continuing education

coursework from the A-List or B-List, or a combination of the two.

Alternatively, if an individual has completed a TCFP-approved academy in the 12

months prior to his or her certification expiration date, a copy of that certificate of

completion is documentation of continuing education for that certification

renewal period.3 Arson investigators are also required to maintain their peace

officer certification, which requires an additional 40 hours of continuing

education coursework per training cycle (training cycles are two years long; the

next cycle runs from September 1, 2011 to August 31, 2013.)4

B. NFPA 1033 Guidelines

In 2009, the NFPA released enhanced guidelines for education and

3
Information on fire investigator training and continuing education requirements was obtained
from the most recent edition of the Texas Commission on Fire Protections Standards Manual for
Fire Protection Personnel.
4
http://www.tcleose.state.tx.us/content/licensing_certifications.cfm

43
training of fire investigators nationwide, and clarified that the guidelines should

apply to all fire investigators. Under NFPA 1033s guidelines, fire investigators

should have, at a minimum, a high school degree plus successful coursework in

the following topics at a post-secondary education level:

fire science;
fire chemistry;
thermodynamics;
thermometry;
fire dynamics;
explosion dynamics;
computer fire modeling;
fire investigation;
fire analysis;
fire investigation methodology;
fire investigation technology;
hazardous materials; and
failure analysis and analytical tools. (NFPA 1033 at 1.3.8.)

Fire investigators must also maintain their knowledge in these subject

areas and remain current with investigation methodology, fire protection

technology, and code requirements by attending workshops and seminars and/or

through professional publications and journals. (Id. at 1.3.7.)

The Commission recommends that the TCFP phase in a timeline for

requiring all investigators to comply with NFPA 1033. The first phase should

require that any fire investigator who testifies in court come into compliance with

NFPA 1033 standards as soon as practicable. Subsequent phases should require

compliance based on the levels of responsibility assumed by investigators. The

timeline should be aggressive but flexible to encourage a smooth transition

toward compliance. Continuing education requirements promulgated by the

TCFP should incorporate NFPA 1033s guidelines.

44
 The FSC also recommends that the SFMO expand its mock trial program

to include more participants. One alternative would be to allow for online

participation, or to work with the TCFP to make the program a component of

continuing education for arson investigators.

RECOMMENDATION 4: COLLABORATIVE TRAINING ON

INCENDIARY INDICATORS

The FSC is encouraged by recent efforts among fire scientists, 5

investigators and officials at the SFMO to develop a training course that includes

hands-on analysis of incendiary indicators through live burn exercises. The

SFMO and TCFP should work with local fire departments to encourage maximum

participation, possibly by offering sessions in multiple regional locations. A

special effort should be made to ensure participation by smaller rural

communities. The SFMO and TCFP should also take into consideration any other

pertinent curriculum recommended by the NIJ and other national agencies and

working groups. The FSC recommends that the following subjects be reviewed at

a minimum:

fire science basics;

fuels;
ignition;
fire growth;
incendiary indicators;
myths and misconceptions;
elimination of accidental causes;
proper documentation and photos;
eyewitness interviews;
diagrams and use of the Ignition Matrix.

5
The FSC is especially grateful to Dr. John DeHaan for working with Commission staff to
develop a suggested training curriculum.

45
Training should be limited to active fire investigators currently serving in Texas

to encourage an open and honest exchange (similar to the post-mortem sessions

conducted by medical doctors and scientists). It should include opportunities for

investigators to participate in live burn exercises. All attendees should be given

current copies of NFPA 921 and Kirks Fire Investigation at a minimum.

Participants should receive continuing education credit for their attendance.

Finally, an examination should be given at the end of the course to determine

whether attendees absorbed key principles.

RECOMMENDATION 5: TOOLS FOR ANALYZING IGNITION

SOURCES

New tools exist to help investigators identify and analyze various sources

of ignition during a fire investigation. For example, the Ignition Matrix (See

Exhibit 32) was introduced in the latest edition of Kirks Fire Investigation and

NFPA 921 as a straightforward method for ensuring compliance with the various

requirements of NFPA 921.6 The matrix prompts investigators to ask a series of

questions regarding potential ignition sources. Investigators then label the

information they have gathered based on pre-established color and notation

categories. The approach constitutes a best practice method for evaluating

sources of data at the scene of a fire and documenting the facts relied upon when

reaching conclusions about various ignition possibilities. When carried out with a

comprehensive map of the suspected area of origin, the Ignition Matrix provides

investigators with a concrete way to conduct a methodical review of data and

facts before forming an opinion, in compliance with NFPA 921. The SFMO

6
Information regarding the Ignition Matrix, developed by Lou Bilancia, was provided to the FSC
by Dr. John DeHaan in February 2011.

46
should consider methods for integrating the Ignition Matrix into its training and

investigative work.

RECOMMENDATION 6: PERIODIC CURRICULUM REVIEW

The FSC recommends that stakeholders (including representatives from

the TCFP, SFMO, fire investigators and scientists) form a regular working group

to review training curricula and ensure that it meets the ongoing needs of fire

investigators in Texas. The group could also identify ways to take advantage of

Internet-based training such as CFITrainer and virtual reality fire investigation

programs. Because CFITrainer provides a variety of online options for achieving

compliance with NFPA 1033, use of the website may be particularly helpful in

rolling out the enhanced certification requirements discussed above.

RECOMMENDATION 7: INVOLVEMENT OF SFMO IN LOCAL

INVESTIGATIONS

Local fire departments call the SFMO for assistance when they believe a

case is significant enough to warrant such assistance. If the SFMO has personnel

available, it sends them to assist. Based on discussions with SFMO leadership, it

appears that the SFMO is always available to assist when called upon; the agency

rarely (if ever) denies assistance. Some Commissioners have questioned whether

there should be clear legal requirements governing cases in which the SFMO

appears for assistance. The Commission strongly recommends that the SFMO

have an Advanced or Master Arson Investigator participate in all fire

investigations involving the loss of life.

47
 RECOMMENDATION 8: ESTABLISHMENT OF PEER REVIEW
GROUP/MULTIDISCIPLINARY TEAM

The Commission strongly recommends that the SFMO establish a peer

review team (perhaps to include someone from the SFMO, a local investigator, a

fire scientist and a medical examiner) to review pending and completed arson

cases on a quarterly basis (similar to the cold case DNA task force group, or CPS

review of child abuse cases, multidisciplinary team (MDT) models, etc.) This

would be a good-faith effort to assure the public that there is a review mechanism

in place, especially for structure arson cases involving fatalities. It would also be

a way to encourage ongoing professional development across the field. The most

efficient approach may be to establish regional MDTs.

RECOMMENDATION 9: STANDARDS FOR TESTIMONY IN

ARSON CASES

The FSC recommends that the SFMO and local fire investigators begin

implementing the standards set forth in NFPA 1033 and related guidelines to

improve the overall quality of testimony offered in arson investigations.

RECOMMENDATION 10: ENHANCED ADMISSIBILITY

HEARINGS IN ARSON CASES

The FSC recommends that admissibility hearings (also referred to as

Daubert/Kelly hearings) be conducted in all arson cases, due to the inherently

complex nature of fire science and the continuously evolving nature of fire

investigation standards. The FSC encourages both prosecutors and defense

counsel to aggressively pursue admissibility hearings in arson cases. In addition,

judges should affirmatively exercise their discretion to hold such hearings in all

48
arson cases as a method of ensuring that fire science testimony is reliable and

relevant.

RECOMMENDATION 11: EVALUATING COURTROOM

TESTIMONY

The Commission recommends that the SFMO and local fire departments

develop policies and procedures for the evaluation of courtroom testimony.

RECOMMENDATION 12: MINIMUM REPORT STANDARDS

SFMO leadership reviews each fire investigation report submitted by its

investigators, and instructs investigators to revise their reports if there is any

indication of an incomplete analysis. This process is designed to help ensure that

the scientific method is followed by SFMO investigators. However, it is limited

to fire reports submitted by investigators employed by the SFMO; there is no

standardized reporting method that applies to fire investigators statewide.

The Commission recommends that the SFMO develop and release

minimum standards for fire investigation reporting statewide. As the NAS Report

notes, there is a critical need in most fields of forensic science to raise the

standards for reporting and testifying about the results of investigations. (NAS

Report at 185.) Minimum standards should verify that key elements have been

reviewed, documented, collected, photographed (to the extent applicable) and

analyzed. They should also have a method for red-flagging scenarios in which

additional consultation might be necessary (such as when an electrical engineer

should be called in to help with arc mapping, etc.). They should track key

elements of NFPA 921, and evolve as new editions are released. Tools such as

the Ignition Matrix and voice-recognition software should be integrated into the

49
report-writing process. The SFMO has obtained a grant for the use of voice-

recognition software; the FSC encourages the agency to seek additional ways to

expand opportunities for using the software.

RECOMMENDATION 13: PRESERVATION OF

DOCUMENTATION

The Commission notes that review of documentation in the Willingham

case presented difficulties because the documents, photographs of fire debris and

related records were no longer available. Local fire departments and the SFMO

should preserve originals and forward only copies of documentation.

RECOMMENDATION 14: DISSEMINATION OF INFORMATION

REGARDING SCIENTIFIC ADVANCEMENTS

The SFMO should identify additional ways to help the fire investigation

community in Texas stay current with national developments in fire science. For

example, there should be a consistent and effective method for disseminating new

information regarding the results of fire science experiments and controlled burn

studies. Formats could include quarterly electronic newsletters, regular online

forums, periodic webcast updates, NIST and NCJRS library resources, journal

abstracting services, etc. The SFMO may also consider retaining a fire scientist to

consult on an as-needed basis. Such a relationship would encourage the free flow

of information between the two communities and provide a continuous source of

outside expertise for particularly challenging interpretive questions.

The FSC recommends that the SFMO perform an internal audit to evaluate

fire investigation training, certification, policies and procedures to ensure

compliance with all relevant national standards. The FSC recommends that the

50
SFMO develop a plan for implementing new standards as they evolve as well as

ongoing quality assurance measures.

RECOMMENDATION 15: CODE OF CONDUCT/ETHICS

State agencies and professional organizations often have a Code of

Conduct or Ethics to guide expectations. The FSC understands that the SFMO

does not currently have such a Code; the FSC recommends that the SFMO

establish a Code of Conduct/Ethics for fire investigators in Texas.

RECOMMENDATION 16: TRAINING FOR LAWYERS/JUDGES

The FSC recommends that the Texas Legislature and/or any other body

overseeing continuing education in Texas consider requiring judges and lawyers

practicing in criminal courts to have some form of ongoing forensic science

training as a component of their Continuing Legal Education obligations.

RECOMMENDATION 17: FUNDING

The Commission urges that the Texas Legislature and municipalities take

steps to ensure that sufficient funding is available to provide training to fire and

arson investigators so that they may meet the standards set out in NFPA 921 and

NFPA 1033, and stay current with national advances in fire science.

The FSC further recommends that the Texas Department of Insurance

make it a priority to ensure that the SFMO receives sufficient funding so that its

fire and arson investigators are properly trained to meet the standards set out in

NFPA 921 and NFPA 1033, and so that they are able to stay current with

advances in fire science.

51
 Finally, the FSC recommends that the SFMO aggressively seek out

alternative sources of funding for education of its investigators, including but not

limited to federal and private grants.

52
If the criteria for an investigation are not met or the Commission declines to
investigate further , you will receive a letter from the Commission.

Your cooperation , patience and understanding are appreciated.

1. PERSON COMPLETING THIS FORM

Barry C. Scheck , Co-Director
Name: The Innocence pro-j ect
Address: 100 Fifth Avenue, Third Floor

City: New York State: NY

Zip Code: 10011 (212) 364-5393

(Elizabeth Vaca,
Home Phone: Work Phone: Administrati ve Assi stant)
evaca innocenceproj ect. org
Email Address (if any): (Eli zabeth Vaca , Administrative Assistant)
2. SUBJECT OF COMPLAINT
List the full name , address of the laboratory, facility or individual that is the subject of
this complaint (if known):
Texas Fire Marshal' s Office
Individual/Laboratory: Forensic Arson Laboratory

Address: 7915 Cameron Road

City: Austin State:

Texas
(Several -- see previously
Date of Examination , Analysis , or Report: submitted document)

Type of forensic analysis: Arson

Laboratory Case Number (if known): 1. Willingham: 91 FR 3577 (among others);

2. Willis: 643 JUN 036 S (among others)
Is the forensic analysis associated with any law enforcement investigation , prosecution or
criminal litigation?

Yes
 *If vou answered " Yes " above. provide the following information (if possible):
1. Cameron Todd Willingham and
*Name of Defendant: 2. Ernest Willis

*Case Number/Cause Number: Numerous (if unown , leave blank)

*Natue of Case:

(in both cases)

Capital murder
(for example - burglary, murder
1. Willingham: Navarro County;
County
, etc.

*The county where case was investigated , prosecuted or filed: . Willis: Pecos
1. Willingham: 366th Judicial District;
*The court: 2. Willis: 112th Judicial District
1. Willingham was sentenced to death and the State of
Texas carried out the sentence;
*The outcome of case:
2. Willis was sentenced to death but later exonerated
and released
*Names of attorneys in case (ifknown):
1. Willingham: Walter M. Reaves, Jr., P. O. Box 55, West, Texas 76691 /
Ph: (254) 826- 3713 / Fax: (254) 826-5572 / wmreaves~postconviction. com
2a. illis: James Blank of Kaye Scholer (formerly of Latham and Watkins)
425 Park Avenue New York, NY 10022-3598
Ph. (212) 836-7528 / Fax: (212) 836-8689 / jblank~kayescholer.com
2b. illis: Ori White, Former DA for the 112th District, Pecos C ounty
Ori T. White & Associates, 107 E. 4th St., Ft. Stockton , TX 79735
Ph: (432) 336- 2880 / Fax: 432- 336- 2881/ office~oritwhite. com
*Your relationship with the defendant:

Self Family Member Laboratory staff member Parent

Friend Attorney None

Al though the Innocence proj ect did not represent Mr.
Other (please specify): Willis or Mr. Willingham in court proceedin gs, it
raises this allegation as a member of the public.

*Ifyou are not the defendant , please provide us with the following information regarding
the defendant:
1. Cameron Todd Willingham
Name: 2. Ernest Willis
1. N/A (deceased)
Address (ifknown): 2. Available through the Innocence proj ec
1. N/A (deceased)
Home phone number: 2 . Ava i l ab l e Work phone number:
through the
Innocence proj ect
3. WITNESSES
Provide the following about any person with factual knowledge or expertise regarding the
alleged professional negligence or misconduct which is the subject of this complaint
(attach separate sheet(s), if necessary)

First witness (if any):

Name:
Dr. John Lentini
Applied Technical Services
Address:1 190 Atlanta Industrial Dr.
Marietta, GA 30066
Daytime phone: 770. 423. 1400 Evening phone:
X 3047
Fax: n/a Email Address: llentini~atslab. com

Second witness (if any):

Name: Daniel L. Churchward / Kodiak Fire & Safety

Address: 6204 Constitution Dr. / Ft Wayne, IN 46804

Daytime phone: 260. 432. 6590 Evening phone:

2 60 . 4 38 . 654 8

Fax: 260. 436. 0768 Email Address:

dchurchward~kodiakconsulting. com

4. DESCRIPTION OF COMPLAINT
Please write a statement of event( s), acts or omissions you believe show that an
brief

accredited laboratory, facility or other entity committed professional negligence or

misconduct that substantially affected the integrity of the results of a forensic analysis:
Both Ernest Willis and Cameron Willingham were sentenced to death
hF.serl on v-irtlJF.lly -irlent-ir.F.l F.sslJmpt-ions , f-inrl-ings F.nrl r.on clusions
by state and local arson investigators in 1986 and 1992 respectively
that each man had set fire to houses and killed people. Even tually,
the conviction of Ernest Willis was vacated and, on remand, after
submission of a report by Dr. Gerald Hurst at the request of Pecos
County District Attorney Ori White, the prosecution concluded that
the assumptions, findings and onclusions of arson investigators had
no scientific merit. The indictment against Mr. Willis was dismissed
 in 2004 , and ultimately, the State of Texas agreed Mr. Willis
was actually innocent and provided him maximum compensation under
the state s wrongful conviction statute.
Mr. Willingham, on the other hand, despite an affidavit in support of
clemency from Dr. Hurst subm tted to the Texas Board of Pardons and
Paroles and to the Governor s office that raised precisely the same
sms as t e Wl ls case, was execute In Fe ruary 200
These two outcomes are mutually exclusive. Willis cannot be found
y lnnocen d W lng am execute d b ase on e same
scientific evidence.
You may use additional paper, if necessary.
5. EXHIBITS AND ATTACHMENT(S)
Whenever possible , complaints should be accompanied by readable copies (NO
ORIGINALS) of any laboratory reports , relevant witness testimony, affidavits of experts
about the forensic analysis , or other documents related to your complaint. Please list and
attach any documents that might assist the Commission to evaluate your complaint.
Documents provided wil NOT be returned.

PLEASE SEE DOCUMENTATION PREVIOUSLY SUBMITTED TO THE

COMMISSION FOR ADDITIONAL INFORMATION PERTINENT TO
THIS ALLEGATION.

6. YOUR SIGNATURE AND VERIFICATION

You must sign below

By signing below, I certify that the statements made by me in this complaint are true. I
also certify that any documents or exhibits attached are true and correct copies , to the best
of my knowledge.

SigmltUr

Date signed:
 Arson Review Committee
A Peer Review Panel Commissioned by the Innocence Project

Douglas J. Carpenter, P.E. Daniel L. Churchward John J. Lentini, Chairman Michael A. McKenzie, Esq. David M. Smith
Combustion Science & Kodiak Fire & Safety Applied Technical Services Cozen OConnor Associated Fire Consultants
Engineering, Inc. 6409 Constitution Dr. 1190 Atlanta Industrial Dr. SunTrust Tower, Ste 2200 4257 West Ina Rd Suite 101
8940 Old Annapolis Rd. Ste L Ft Wayne, IN 46804 Marietta, GA 30066 303 Peachtree St. NE Tucson, AZ 85741
Columbia, MD 21045 www.kodiakconsulting.com www.atslab.com Atlanta, GA 30308 www.assocfire.com
www.csefire.com www.cozen.com

________________________________________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________________________________________

Report on the Peer Review

of the Expert Testimony
in the Cases of
State of Texas v. Cameron Todd Willingham

and

State of Texas v. Ernest Ray Willis

 Report of the Innocence Project Arson Review Committee

1 Innocence Project
2
3 Arson Review Committee (ARC) Report
4
5
6 TABLE OF CONTENTS
7
8 Executive Summary 3
9
10 Introduction 3
11
12 Methodology 4
13
14 Review of Trial Testimony
15
16 State of Texas v. Cameron Todd Willingham 5
17
18 Trial Testimony of Manuel Vasquez 5
19
20 Trial Testimony of Douglas Fogg 15
21
22 Report of the Texas State Fire Marshal 17
23
24 State of Texas v. Ernest Ray Willis 20
25
26 Trial Testimony of Edward Cheever 20
27
28 Trial Testimony of John Dailey 29
29
30 Report of the Texas State Fire Marshal 35
31
32 Report of John Dailey 35
33
34 The State of the Art in Fire Investigation Prior to 1992 38
35
36 The State of the Art in Fire Investigation Since 1992 40
37
38 Recommendations 40
39
40 The Authors 43
41
42 Signature Pages 45
43

2
 Report of the Innocence Project Arson Review Committee

1 Executive Summary
2
3 Neither the fire that killed the three Willingham children nor the fire that killed Elizabeth Grace
4 Belue and Gail Joe Allison were incendiary fires. The artifacts examined and relied upon by the
5 fire investigators in both cases are the kind of artifacts routinely created by accidental fires that
6 progress beyond flashover.
7
8 The States expert witnesses in both cases relied on interpretations of indicators that they were
9 taught constituted evidence of arson. While we have no doubt that these witnesses believed what
10 they were saying, each and every one of the indicators relied upon have since been scientifically
11 proven to be invalid.
12
13 To the extent that there are still investigators in Texas and elsewhere, who interpret low burning,
14 irregular fire patterns and collapsed furniture springs as indicators of incendiary fires, there will
15 continue to be serious miscarriages of justice.
16
17 Continuous (and in some cases, remedial) training and professional development of fire
18 investigators is required. Additionally, participants in the justice system need to become better
19 educated, and more skeptical of opinion testimony for which there is no scientific support, and
20 need to ensure that defendants in arson cases are afforded the opportunity to retain independent
21 experts to evaluate charges that a fire was incendiary.
22
23 In the cases of individuals already convicted using what is now known to be bad science (or no
24 science), the Courts should treat the new knowledge as newly discovered evidence. It was
25 resistance to this concept that allowed the State to execute Mr. Willingham, even though it was
26 known that the evidence used to convict him was invalid.
27
28
29 Introduction
30
31 The undersigned fire investigators have been requested by the Innocence Project to examine the
32 outcomes of two Texas arson convictions, those of Cameron Todd Willingham and Ernest Ray
33 Willis.1 The Willis fire occurred in Iraan, Texas, on June 11, 1986, and the Willingham fire
34 occurred in Corsicana, Texas on December 23, 1991. Both cases reached their ultimate
35 conclusion in 2004. On February 17, Cameron Todd Willingham was executed by lethal
36 injection. On October 6, Mr. Willis was freed from the same facility where Mr. Willingham was
37 executed.
38
39 Fire is governed by the laws of physics. In order to reach valid determinations, therefore, the
40 investigation of fires must follow the Scientific Method as all other physical science
41 investigations do. After a review of the scientific basis for the determination of arson, the
42 prosecutors in the Willis case acknowledged that his conviction was based on faulty science and
43 unreliable indicators of arson. Even though, for all practical purposes, the interpretations of the
44 physical evidence as testified to in the Willis trial were the same in the Willingham trial and after

1
None of the authors have received any compensation for this pro bono review, nor will any compensation be
accepted.

3
 Report of the Innocence Project Arson Review Committee

1 a similar review determined that the conviction was also based on unreliable indicators, no such
2 acknowledgment has come forward from the prosecutors in that case. While any case of
3 wrongful conviction, acknowledged or not, is worthy of review, the disparity of the outcomes in
4 these two cases warrants a closer inspection.
5
6 The primary goal of this review is to identify the factors that led to the conviction of Mr.
7 Willingham and Mr. Willis and to provide recommendations that, if followed, will lead to the
8 undoing of other miscarriages, and prevent future miscarriages of justice with respect to the
9 crime of arson.
10
11 Methodology
12
13 In any prosecution of arson, there is a bifurcation associated with the burden of proof. Unlike
14 bank robberies or murders, arson prosecutions require that the State first prove beyond a
15 reasonable doubt that the fire was, in fact, intentionally set. In many cases, once this hurdle is
16 overcome, the identity of the perpetrator is obvious. If the fire is intentionally set and the
17 perpetrator is not obvious, the State must further prove beyond a reasonable doubt that the fire
18 was intentionally set by a specific individual(s). If the fire is not intentionally set, however, the
19 potential for a miscarriage of justice does not just lie in the false determination of a set fire. The
20 miscarriage extends to the accusation and potential conviction of an innocent person for a crime
21 that never occurred. Certainly, in the case of the Willingham fire, if the fire was set, Mr.
22 Willingham most likely was the perpetrator. Thus, a threshold question for the jury is not
23 whether the defendant committed the crime, but whether in fact a crime was committed. The
24 jurys determination of the cause of the fire usually rests on the interpretation of post-fire
25 artifacts by expert witnesses.
26
27 Beyond the experts determination of the cause of the fire, however, there is the communication
28 of that opinion to a jury. In effect, the jury is making a second determination, or ratifying the fire
29 investigators determination. Thus, while looking at photographs of the fire scene and the fire
30 investigators report will help us to understand how a fire investigator could be mistaken, it is the
31 testimony of the fire investigator that causes a jury to reach its conclusion. Because it is the
32 jurys decision that ultimately determines the outcome of a case, our focus will be mainly on the
33 sworn testimony of the investigators2 who persuaded the jury to believe that the fires in both
34 cases had been intentionally set.
35

2
The testimony under study is both lengthy and repetitive. Thus, the review of the testimony will be somewhat
tedious. Because it is so repetitive, however, there is little chance that we have misconstrued the witnesses meaning.

4
 Report of the Innocence Project Arson Review Committee

1 Review of Testimony and Reports

2
3 State of Texas v. Cameron Todd Willingham
4
5 Trial Testimony of Manuel Vasquez
6
7 Manuel Vasquez was a Deputy State Fire Marshal who was the lead expert witness in the case
8 against Cameron Todd Willingham. After eight years of service in the Army, Mr. Vasquez
9 worked for the Grand Prairie Fire Department for thirteen years, spent three years with the Dallas
10 County Fire Marshals Office, seven years as the Fire Marshal for the City of Lancaster, and
11 seven years with the Texas State Fire Marshals Office. Trial transcript at page 227 begins on
12 line 24 with the following:
13
14 Q: And how many fires have you investigated since becoming a Certified
15 Fire/Arson Investigator?
16
17 A: Perhaps in the range of 1,200 to 1,500 fires.
18
19 Q: Of these 1,200 to 1,500 fires, how many turned out to be arson in your
20 opinion?
21
22 A: With the exception of a few, most all of them.
23
24 Q: And how manyagain, based on your experience, how many arson fires
25 that you investigated involved injuries or deaths?
26
27 A: Unfortunately, fires injure a lot of peoplekill a lot of people. Its about
28 50%.
29
30 While it is true that State Fire Marshals frequently do not receive requests to investigate fires that
31 are known to be accidental, most all of them is an extremely high percentage of fires to have
32 been determined to be arson. There are many organizations including the National Fire
33 Protection Association (NFPA), the Bureau of Alcohol, Tobacco, Firearms and Explosives
34 (ATF), the United States Fire Administration (USFA), and the Federal Bureau of Investigations
35 (FBI) that collect and compile statistics on the crime of arson that can be used to compare Mr.
36 Vasquezs estimates. The most relevant data with respect to this case is from the Texas State Fire
37 Marshals Office (TSFMO). Table 1 provides the number of fires investigated by the TSFMO
38 versus the number of fires investigated that were determined to be arson. From the period of
39 1980 to 2005, the average percentage of fires determined to be arson by the TSFMO was 50%. A
40 50% arson rate would not be considered to be most all of them, as testified to by Mr. Vasquez.
41
42 Furthermore, the injury rate estimated by Mr. Vasquez is exceptionally high when compared
43 with national fire statistics. Table 2 provides the number of fires reported annually and the
44 number of fire-related deaths and injuries from data compiled by the U.S. Fire Administration.
45

5
 Report of the Innocence Project Arson Review Committee

1
YEAR SET FIRES / PERCENT 2
INVESTIGATIONS 3
2004 229 of 507 45% 4
2003 274 of 550 50% 5
2002 343 of 678 51%
6
2001 217 of 487 45%
2000 241 of 556 43% 7
1999 216 of 481 45% 8
1998 219 of 531 41% 9
1997 209 of 433 48% 10
1996 352 of 754 47% 11
1995 333 of 624 53% 12
1994 311 of 552 56% 13
1993 276 of 524 53%
14
1992 269 of 486 55%
1991 247 of 415 60% 15
1990 227 of 428 53% 16
17
18
19 Table 1 Number of Set Fires versus the Number of Fires Investigated (Source: Texas
20 State Fire Marshals Office, Department of Insurance). Copyright 2006, Chicago Tribune
21
22
23 From the period of 1995 to 2005, the average annual percentage of fires that resulted in deaths
24 was 0.23% and the average annual percentage of injuries was 1.22%. Again, Mr. Vasquezs
25 overestimation of the death and injury rates shows a lack of knowledge in this area. Such
26 comparisons highlight his bias towards arson determinations and a lack of knowledge of the
27 death and injury rates in his home state. Of course this overestimation may simply have been an
28 attempt to prejudice the jury. Mr. Vazquezs characterization that most all of his fire
29 investigations are arsons alerts the jury that this case must also be an arson case because Mr.
30 Vasquez has investigated it. He should have been challenged in cross-examination on these
31 estimates with respect to his credibility as an expert witness.

6
 Report of the Innocence Project Arson Review Committee

YEAR FIRES DEATHS INJURIES DIRECT 1

DOLLAR 2
LOSS IN 3
MILLIONS 4
1995 1,965,500 4,585 25,775 $9,182 5
1996 1,975,000 4,990 25,550 $9,406 6
1997 1,795,000 4,050 23,750 $8,525 7
1998 1,755,000 4,035 23,100 $8,629 8
1999 1,823,000 3,570 21,875 $10,024 9
2000 1,708,000 4,045 22,350 $11,207 10
20013 1,734,500 3,745 20,300 $10,583 11
20014 1,734,500 2,451 800 $33,440
12
2002 1,687,500 3,380 18,425 $10,337
13
2003 1,584,500 3,925 18,125 $12,307
14
20045 1,550, 500 3,900 17,785 $9,794
15
16
17 Table 2 - Number of fires, deaths, injuries and dollar loss in the United States from 1995 to
18 2004. (Source: United States Fire Administration)
19
20 On page 232 of the trial transcript, Mr. Vasquez provided the kind of testimony very typical of
21 under-trained fire investigators in that time period.
22
23 All fire goes up. All water goes down. Or any liquid goes down unless man
24 changes the course.
25
26 At page 238, Mr. Vasquezs testimony moves into the interpretation of alleged pour patterns
27 on the floor in a compartment (room) fully involved in fire. The following testimony begins at
28 line 16.
29
30 So this area right here are what I call burn trailers. Burn trailers is like a trailer,
31 you know like a little path, a burnt path. A pour pattern, which is a pattern like
32 somebody put some liquid on the floor or wherever; and, of course, when you
33 pour liquid, then it creates a puddle. Liquids create puddles.6 When it rains, you
34 get puddles. When the baby drops its milk, you create puddles. If you ever drop a
35 Coke, you create puddles. All this area has that, has the burn trailer pour patterns
36 and configurations.
37
38 This area right here, which is right here almost in front of this bed, is deep
39 charred. The floor, it didnt burn through the floor but it burned the three layers of

3
Excludes the events of September 11, 2001.
4
These estimates reflect the number of deaths, injuries and dollar loss directly related to the events of September 11,
2001.
5
The decrease in direct dollar loss in 2004 reflects the Southern California wildfires with an estimated loss of
$2,040,000,000 that occurred in 2003.
6
The transcript actually reads Liquids creates puddles. Because of the possibility that many grammatical errors
are actually transcription errors, this report will not gratuitously reprint grammatical errors, unless failing to do so
would alter the meaning of the testimony.

7
 Report of the Innocence Project Arson Review Committee

1 the floor. And a pour pattern and trailer is an indication that somebody poured
2 something, you know, either going in or going out.
3
4 Later, on page 239 at line 15, he states:
5
6 It indicatesyou are beginning to see the puddle configurations, the pour
7 patterns right here in this area in front of the bedroom, but in the hallwayagain,
8 now, we are looking at this area right here just before you go into the bedroom,
9 you are still in the hallway. This picture right here, thats Exhibit #27. And you
10 got a char burning, like for example, this is the bottom here is burned down here
11 at the bottom. That is an indicator in my investigation of an origin of fire because
12 its the lowest part of the fire.
13
14 When a fire occurs inside a compartment (i.e. a compartment fire7), the fire behaves differently
15 than if it is burning in the open8. Following ignition, while the fire in a compartment is still
16 relatively small, it will be burning freely9,10. If it can grow in size, either through flame spread
17 across the first ignited fuel or by spreading to adjacent fuels, a stage will be reached when the
18 compartment boundaries influence the development of the fire11. Due to buoyancy, the heated
19 products of combustion from a fire in the open rise as a column of hot gas referred to as a
20 thermal plume. When the rising thermal plume impinges on the ceiling of a compartment, the
21 flow of hot gases is forced to spread horizontally in all directions until the flow is redirected by
22 any intervening walls. When the hot products of combustion can no longer spread horizontally, a
23 layer will start to develop, descend, and become relatively uniform in depth. This layer is
24 referred to as the upper layer, also known as the ceiling layer. Mass and energy are transported
25 from the fire source to the upper layer through the thermal plume. If the fire continues to grow in
26 size, the upper layer will increase in depth and temperature. In the early stages of a compartment
27 fire, convection is the most significant mode of heat transfer in the room of origin and
28 throughout the building. As the temperature of the upper layer increases, thermal radiation
29 becomes the dominant mode of heat transfer.12.
30
31 When the temperature of the upper layer reaches approximately 1,100-1,200 F, there is
32 sufficient thermal radiation (i.e. 20 kW/m2) reaching the fuel packages within the compartment
33 to ignite every exposed and easily-ignitable combustible surface in the room. This level of
34 thermal radiation has been defined as the onset of flashover, which is a transitional event that
35 marks a change from a condition where the fire is dominated by the burning of the first item
36 ignited to a condition where the fire is dominated by the burning of all combustible items in the
37 compartment. The post-flashover condition is referred to as a fully developed fire or full room
38 involvement. Flashover also marks a transition from a fuel-controlled fire to a ventilation-

7
The term compartment fire is defined as a fire that is confined within an enclosure such as in a room or building.
8
Drysdale, D., An Introduction to Fire Dynamics, second edition, John Wiley & Sons, New York, 1999.
9
The term burning freely is defined as a fire whose pyrolysis rate and heat release rate are affected only by the
burning of the fuel itself and not by the presence of any boundaries of a compartment.
10
Walton W. D., and Thomas, P. H., Estimating Temperatures in Compartment Fires, in The SFPE Handbook of
Fire Protection Engineering, 2nd edition,, Society of Fire Protection Engineers, Quincy, MA, 1995.
11
Drysdale, D., An Introduction to Fire Dynamics, second edition, John Wiley & Sons, New York, 1999.
12
NFPA 921, Guide for Fire and Explosion Investigations, National Fire Protection Association, Quincy, MA,
2004.

8
 Report of the Innocence Project Arson Review Committee

1 controlled fire. The size of the fire (i.e. the heat release rate) in the fuel-controlled phase is
2 dependent on how much of the surface area of the fuel package(s) is burning at any given time.
3 In the ventilation-controlled phase, the size of the fire is dependant on the rate of inflow of air
4 into the compartment. The post-flashover compartment fire is characterized by the entire volume
5 of the compartment being filled with flames, and any unburned fuel produced within the
6 compartment can be burned at ventilation openings (e.g. open doors and windows) where the
7 fuel can be mixed with available air. This burning regime will produce conditions sufficient to
8 burn and consume materials lining the compartment, such as floors, ceilings, and walls. This
9 process can create patterns on those surfaces of the type described by Mr. Vasquez as puddle
10 configurations and pour patterns. More importantly, these patterns can be created in
11 compartment fires where no flammable liquids were introduced. Surprisingly, such knowledge of
12 compartment fires was readily available to the fire investigation community in the Fire
13 Investigation Handbook13 published in 1980, more than a decade before the Willingham fire.
14
15 In order for any investigator, including Mr. Vasquez, to credibly identify the fire pattern as being
16 the result of an ignitable liquid, he would have had to possess knowledge that would allow him
17 to distinguish the characteristics of patterns on the floor that resulted from a fully involved
18 compartment fire where flammable or combustible liquids were introduced from patterns on the
19 floor created by a fully involved compartment fire where no such flammable or combustible
20 liquids were introduced. Such knowledge exists only in the imagination of certain fire
21 investigators. While Putorti14 documented the patterns resulting from the burning of flammable
22 and combustible liquids on different flooring materials, the purpose of his work was to provide a
23 method for predicting the quantity of spilled fuel required to form a burn pattern of a given size.
24 In addition, these tests were not conducted in an enclosed compartment that produced post-
25 flashover burning. Putorti15 also conducted full-scale tests of compartment fires to provide data
26 for the study of burn patterns. The goal of the project was to produce data that would support
27 conclusions on the impact of the fire ignition method (accidental vs. arson) on the formation of
28 burn patterns. Based on this work, significant differences in the condition and appearance of the
29 fire compartments and contents were observed between experiments with the same method of
30 ignition. Simply stated, the patterns produced could not be used to discriminate an arson
31 fire from an accidental fire.
32
33 The United States Fire Administration also conducted a study of fire patterns in compartments
34 with and without the use of an accelerant16. One of the findings of the study was that the
35 presence of floor patterns in a compartment, which experienced post-flashover conditions, is not
36 a reliable indicator of the presence of an ignitable liquid introduced as an accelerant. Thus, the
37 knowledge required to discern patterns produced by ignitable liquids from those in un-
38 accelerated compartment fires was not available at the time of this fire, and subsequent
39 experimental testing has shown that it is not possible to correctly evaluate a fire in a fully

13
Brannigan, F. L., Bright, R. G., and Jason, N. H., Fire Investigation Handbook, National Bureau of Standards
Handbook 134, National Bureau of Standards, Washington, D.C., August, 1980.
14
Putorti, A. D., Flammable and Combustible Liquid Spill/Burn Patterns, NIJ Report 604-00, National Institute of
Justice, Washington, D.C., March 2001.
15
Putorti, A. D., Full Scale Room Burn Pattern Study, NIJ Report 601-97, National Institute of Justice,
Washington, D.C., December 1997.
16
Shanley, J. H., Report of the United States Fire Administration Program for the Study of Fire Patterns, FA 178,
Federal Emergency Management Administration, United States Fire Administration, July 16, 1997.

9
 Report of the Innocence Project Arson Review Committee

1 involved compartment as being the result of ignitable liquids on the basis of the appearance of
2 the floor. Yet, that is exactly what happened time after time prior to the early 1990s.
3 Unfortunately, some of these same misinterpretations still happen today.
4
5 In order to credibly identify the fire pattern as being the result of an ignitable liquid, it is
6 necessary for a laboratory to find the ignitable liquid residue in samples of the debris. Laboratory
7 techniques that were available to the State of Texas in 1992 were sufficient to detect quantities of
8 ignitable liquid residue as small as 0.1 ml, or 1/500 of a standard drop.
9
10 The misconception that he could identify the cause of a fire pattern based on visual inspection
11 was not Mr. Vasquezs only error. Describing the condition of bedsprings, on page 241, he
12 states:
13
14 The springs were burned from underneath. This indicates there was a fire under
15 this bed because of the burn underneath the bed.
16
17 Perhaps the fire did, at some point, burn underneath the bed, but this is a natural progression in a
18 fully involved compartment fire, especially when polyurethane foam is involved, which can
19 melt, drip and form a pool fire on surfaces under furniture. This is demonstrated in the USFA
20 study of burn patterns17. In Test 7, the compartment went to flashover and was allowed to burn
21 for a couple of minutes before manual suppression was initiated. Based on the post-fire
22 observations, it was evident that the fire was able to spread and cause damage to the floor under
23 a bed.
24
25 Mr. Vasquez indicates that he understands the nature of expert testimony: that of interpreting fire
26 artifacts for the jury. At page 244, he states:
27
28 The fire tells the story. I am just the interpreter. I am looking at the fire, and I am
29 interpreting the fire. That is what I know. That is what I do best. And the fire does
30 not lie. It tells me the truth.
31
32 Unfortunately for Mr. Willingham, while the fire may not have lied, Mr. Vasquez
33 misinterpreted what it was telling him. Such willingness to offer expert testimony, while
34 lacking the knowledge to present accurate information to the jury, may excuse Mr. Vasquezs
35 many serious errors. The judicial system that allows such testimony to be presented, however, is
36 clearly flawed and in need of reform.
37
38 At page 249, Mr. Vasquez provided some truly remarkable (and seriously mistaken) testimony
39 that may have convinced the jury that this fire burned hotter than normal. He stated, beginning
40 at line 7:
41
42 This is the same area except Im outside. Im taking the picture looking inside,
43 and this time Im looking at the aluminum threshold. And aluminum melts at

17
Shanley, J. H., Report of the United States Fire Administration Program for the Study of Fire Patterns, FA 178,
Federal Emergency Management Administration, United States Fire Administration, July 16, 1997.

10
 Report of the Innocence Project Arson Review Committee

1 1,200 normal. Wood fire does not exceed 800. So to me, when aluminum melts,
2 it shows me that it has a lot of intense heat. It reacts to it. That means its
3 temperature is hot. The temperature cannot react. Therefore the only thing that
4 can cause that to react is an accelerant. You know it makes the fire hotter. Its not
5 normal fire. Its Exhibit #43.
6
7 First, there exists no such entity as a normal fire. Hostile fire in a structure is by definition an
8 abnormal event. There is only the fires behavior and the investigators expectations of fire
9 behavior. If the investigators expectations about fire behavior are not properly calibrated, the
10 investigator will make misinterpretations. For example, the notion that an accelerated fire burns
11 at higher temperatures than an unaccelerated fire is an appealing one, but it is simply incorrect. It
12 can be easily demonstrated that this notion is verifiably false using classical thermodynamic
13 analysis techniques. Adiabatic flame temperature calculations18 have been well established for
14 more than a century and clearly demonstrate that a well-ventilated gasoline fire produces flame
15 temperatures virtually the same as a well-ventilated wood fire. Further, controlled burns where
16 fire investigators tested various principles in fire science have produced repeatable results in
17 which the range of temperatures attained by unaccelerated fires were of the same magnitude as
18 those in which ignitable liquids were used. In 1992, unfortunately, such knowledge was
19 relatively new to the fire investigation community, having been published in the first edition of
20 NFPA 92119. The proposition that wood fires do not exceed 800 is an incredible one.20
21 Aluminum has a melting point in the range of 1000 to 1200 F and regularly melts in un-
22 accelerated compartment fires, which can achieve average temperatures in the range of 1,000 to
23 2,000 F21. Thus, there is nothing unusual about finding melted aluminum, or even melted
24 copper, in a compartment fire when the room becomes fully involved. The statement, Therefore
25 the only thing that can cause that to react is an accelerant, would be sufficient in itself to cause a
26 trusting jury member to believe that the fire was intentionally set.
27
28 All of the authors have reviewed a 52-minute videotape showing the scene of the fire. Mr.
29 Vasquez claimed, beginning at page 255, that there were multiple points of origin. This is
30 another assertion that has no support. Because of the convincing nature of the proposition that
31 accidental fires are only supposed to have one point of origin, if the jury believes there are
32 multiple points of origin, they are likely to believe the fire was intentionally set. He says:
33
34 So there were three areas of origin.
35
36 He further stated:
37
38 Multiple areas of origin indicateespecially if there is no connecting path, that
39 they were intentionally set by human hands.
40
18
Holman, J. P., Thermodynamics, Fourth Edition, John Wiley & Sons, New York, 1988.
19
NFPA 921, Guide for Fire and Explosion Investigations, National Fire Protection Association, Quincy, MA,
1992.
20
Because he was using the Fahrenheit melting temperature of aluminum, we infer that he was also using the
Fahrenheit scale when he stated that wood fires do not exceed 800 degrees.
21
Drysdale, D., An Introduction to Fire Dynamics, second edition, John Wiley & Sons, New York, 1999.

11
 Report of the Innocence Project Arson Review Committee

1 In fact, as shown in the videotape, all of the burned areas in this residence were contiguous.
2 There is a connecting path. That path might not always be visible on the floor, simply because
3 fire is a three-dimensional phenomenon. Even if we assume for the sake of argument that Mr.
4 Vasquezs repeated assertions that there was liquid accelerant used in this fire are correct, the
5 distance between the three alleged areas of origin would not constitute an effective separation for
6 a flammable liquid because the vapor would simply flash across the intervening space between
7 the alleged pools of liquid fuel. In essence, there could only have been one origin given Mr.
8 Vasquezs determination.
9
10 When asked to explain what indicators mean, he states:
11
12 The first incendiary indicator is the auto-ventilation. The inconsistency of the
13 fire going out of this window and the fire going out of the door and this window
14 here thats inconsistent with fire behavior. Thats an indicator its a possible
15 incendiary fire.
16
17 Okay. Puddle configurations, pour patterns, low char burning, charred floor, the
18 underneath burning of the baseboard, the brown stains on the concrete, the
19 underneath of the bed, because of the fire right underneath the bed, puddle
20 configurations in that area, and the total saturation of this floor is indicated with
21 pour patterns, because thats all Im doing is looking at the facts, at the evidence.
22 Thats all Im using.
23
24 The first incendiary indicator, i.e., auto-ventilation, is a term of art used by fire fighters to
25 describe ventilation paths not created by the actions of those fighting the fire. Window breakage
26 is a common example of auto-ventilation and is consistent with unaccelerated compartment
27 fires. A classic example of window breakage in an un-accelerated compartment fire is shown in
28 the NFPA video Fire Power22, which was produced in 1985. The mechanism of window
29 breakage in fires due to thermal exposure was first studied experimentally by Bart and Sung23 at
30 Harvard University in 1977. Subsequent papers have been published that have verified and
31 expanded on this research.24,25,26,27,28,29,30,31 The conclusion of this extensive research is that glass

22
Fire Power (Video), NFPA, Quincy, MA, 1985.
23
Barth, P.K., and Sung, HT, Glass Fracture under Intense Heating, Senior Project ES96, Harvard University,
1977.
24
Emmons, H. The Needed Fire Science, Fire Safety Science Proceedings of the First International Symposium,
1986.
25
Skelly, M. J., Roby, R. J., and Beyler, C. L., An Experimental Investigation of Glass Breakage in Compartment
Fires, Journal of Fire Protection Engineering, 3 (1), pp 25 34, 1991.
26
Pagni, P.,J., Thermal Glass Breakage, Fire Safety Science Proceedings of the Seventh International
Symposium, 2002.
27
Hassani, S. K. S., Shields, T. J., and Silcock, G. W. H., An Experimental Investigation into the Behavior of
Glazing in Enclosure Fire, Chapter 1, The Behavior of Glass and Other Materials Exposed to Fire, Volume 1,
Applied Fire Science in Transition Series, Baywood Publishing Company, Amityville, NY, 2002.
28
Hassani, S. K. S., Shields, T. J., and Silcock, G. W. H., Thermal Fracture of Window Glazing: Performance of
Glazing in Fires, Chapter 2, The Behavior of Glass and Other Materials Exposed to Fire, Volume 1, Applied Fire
Science in Transition Series, Baywood Publishing Company, Amityville, NY, 2002.

12
 Report of the Innocence Project Arson Review Committee

1 exposed to a fire breaks due to the temperature differential between the exposed and unexposed
2 areas of the window glass.
3
4 In addition, it is undisputed that Mr. Willingham himself created most of the initial ventilation
5 paths. Mr. Willingham stated that he exited the house through the front door. The rear exterior
6 door located in the kitchen was found to be obstructed by a refrigerator preventing the use of this
7 door as an exit by occupants. Mr. Willingham stated that he broke out the two front windows on
8 the front porch using a pool cue. This information was apparently disregarded in Mr. Vasquezs
9 analysis of this fire, but had significant implications with respect to any determination that auto-
10 venting was the first incendiary indicator. Aside from the lack of attention paid by Mr.
11 Willinghams counsel to such inconsistencies, disregarding data that does not fit ones
12 hypothesis is a clear violation of the scientific method. The scientific method requires that all of
13 the data gathered be used to test any developed hypothesis. Again, such knowledge is relatively
14 new to the fire investigation community. Although the scientific method had its origins and
15 acceptance in the mid-1600s 32 and has been used in forensic analyses in other disciplines for
16 more than a century, it was not explicitly recommended for use in fire investigations until the
17 first edition of NFPA 921 was issued in 1992.33
18
19 Each and every one of the indicators listed by Mr. Vasquez means absolutely nothing, and, in
20 fact, is expected in the context of a fire that has achieved full room involvement, as this fire
21 clearly did. Low burning, charred flooring and burning underneath items of furniture are
22 common characteristics of a fully involved fire.34 They mean nothing with respect to the origin
23 and cause of the fire, and they absolutely do not support any hypothesis that the fire had been
24 accelerated by liquid fuels.
25
26 On the next page of the transcript (256) Mr. Vasquez stated:
27
28 So when I found that the floor is hotter than the ceiling, thats backwards, upside
29 down. It shouldnt be like that. The only reason that the floor is hotter is because
30 there was an accelerant. Thats the difference. Man made it hotter or woman or
31 whatever. Human being made it hotter.
32
33 Such reasoning shows a lack of knowledge of compartment fire dynamics and the response of
34 building materials when exposed to fire. It is impossible during a compartment fire for the

29
Hassani, S. K. S., Shields, T. J., and Silcock, G. W. H., In Situ Experimental Thermal Stress Measurements in
Glass Subjected to Enclosure Fires, Chapter 3, The Behavior of Glass and Other Materials Exposed to Fire,
Volume 1, Applied Fire Science in Transition Series, Baywood Publishing Company, Amityville, NY, 2002.
30
Hassani, S. K. S., Shields, T. J., and Silcock, G. W. H., The Behavior of Single Glazing in an Enclosure Fire,
Chapter 4, The Behavior of Glass and Other Materials Exposed to Fire, Volume 1, Applied Fire Science in
Transition Series, Baywood Publishing Company, Amityville, NY, 2002.
31
Hassani, S. K. S., Shields, T. J., and Silcock, G. W. H., The Behavior of Double Glazing in an Enclosure Fire,
Chapter 5, The Behavior of Glass and Other Materials Exposed to Fire, Volume 1, Applied Fire Science in
Transition Series, Baywood Publishing Company, Amityville, NY, 2002.
32
Lentini, J., Scientific Protocols in Fire Investigation, CRC Press, 2006.
33
NFPA 921, Guide for Fire and Explosion Investigations, National Fire Protection Association, Quincy, MA, 1992.
34
See USFA Fire Burn Pattern Tests. Patterns on floor surfaces were produced in fire tests where post-flashover
conditions were produced without the use of ignitable liquids. Examples include Tests 2, 5, 7, and 9.

13
 Report of the Innocence Project Arson Review Committee

1 temperatures to be greater at the floor than at the ceiling with the exception of the volume within
2 the fire plume. Prior to flashover, buoyancy drives the hot products of combustion to the ceiling
3 through the thermal plume, where a hot upper layer at the ceiling forms. As a first
4 approximation, the lower layer is at ambient temperatures. During post-flashover conditions,
5 flames fill the volume of the compartment, so for all practical purposes, the temperature is the
6 same at the floor as at the ceiling. Thus, the temperatures at the floor are never higher than at the
7 ceiling.
8
9 With respect to the response of the building materials, the walls and ceiling of the front bedroom
10 were constructed of gypsum wallboard, while the floor was constructed of wood overlaid with
11 tile, padding and carpet. The major component of gypsum wallboard is calcium sulfate dihydrate,
12 (CaSO4.2H2O). Because of the chemically bound water, gypsum wallboard has the ability to
13 absorb a significant amount of heat, which drives off the water before the wallboard experiences
14 calcination and eventually, structural failure.35 Gypsum wallboard is able to withstand post-
15 flashover conditions for a significant period of time (tens of minutes) before failure occurs, and
16 is one of the more reliable materials used in the construction of fire-resistant barriers. Carpet,
17 padding, floor tile, and wood, on the other hand, are easily ignitable fuels, when exposed to post-
18 flashover conditions. Thus, given full room involvement, one would expect that the flooring
19 materials would be more heavily damaged than the less combustible walls and ceilings. To
20 interpret this natural fire progression as evidence of incendiarism is false and extremely
21 misleading. Mr. Vasquez might not have known better, but his testimony was misleading
22 nonetheless.
23
24 Fire investigators who reach false conclusions, then hear descriptions of events from fire
25 survivors that do not comport with their conclusions, frequently have testified that only the killer
26 or the arsonist has a motive to lie. The undersigned investigators, having been involved in cases
27 of fires misattributed to arson, are familiar with this phenomenon. Mr. Vasquez first formed the
28 conclusion that the fire was intentionally set. Then he was allowed to tell the jury:
29
30 Ive talked to the occupant of this house and I let him talk and he told me a story
31 of pure fabrication.
32
33 Mr. Vasquezs only basis for reaching that conclusion was his own misinterpretation of the
34 meaning of the fire artifacts that he observed. He stated over and over:
35
36 He just talked and he talked and all he did was lie. (Page 260)
37
38 He said what he said he had done is inconsistent with the burn patterns in the
39 house. (Page 261)
40
41 Mr. Vasquez testified at page 262 that Mr. Willinghams injuries were self-inflicted. Based on
42 his misinterpretation of the fire artifacts and the inconsistent description of events provided by

35
McGraw, J. R., Jr., and Mowrer, F. W. Flammability and Dehydration of Painted Gypsum Wallboard Subjected to
Fire Heat Fluxes, Fire Safety Science Proceedings of the Sixth International Symposium, International
Association for Fire Safety Science, Boston, MA, pp 1003-1014, 2000.

14
 Report of the Innocence Project Arson Review Committee

1 Mr. Willingham, Mr. Vasquez was allowed to testify to the ultimate issue on page 268 when the
2 following exchange took place:
3
4 Q: Do you have an opinion as to who started fire?
5
6 A: Yes, sir.
7
8 Q: What is that opinion?
9
10 A: The occupant, Mr. Willingham.
11
12 Later, on redirect examination, he not only was able to testify that the fire was intentionally set
13 by Mr. Willingham, but that his intent was to kill his children. Mr Vasquez stated:
14
15 The fire, itself, tells me that its a very aggressive fire; and, therefore, the fire
16 was not a planned fire. It was a spur-of-the-moment fire.
17
18 Thus, while Mr. Vasquez claims the ability to divine intent, he can provide no motive other than
19 a spur-of-the-moment decision.
20
21 Trial Testimony of Douglas Fogg
22
23 Douglas Fogg was the Assistant Fire Chief for the Corsicana Fire Department. He had worked
24 for the fire department for a little over 22 years at the time of his testimony. That was the only
25 qualification presented prior to the Mr. Fogg being allowed to present expert opinion testimony.
26 Although no testimony was elicited indicating that he had been trained in fire investigation, there
27 was no objection from the defense.
28
29 Mr. Fogg seemed to harbor many of the same misconceptions held by Mr. Vasquez, particularly
30 the notion that without the use of accelerants, fire will only burn upward. He stated, at page 159,
31
32 and as we started removing debris from the floor, as we had low burn, we
33 started finding configurations of puddling effects, pouring effects of a liquid or
34 what we would consider a liquid being used to accelerate a fire.
35
36 In this testimony, Mr. Fogg was describing fire patterns on the floor, which have been
37 scientifically proved to be the natural result of fires in fully involved compartments.
38
39 At page 160, he eliminates the electrical wiring as an ignition source. He stated:
40
41 The electrical, you look at the electrical wiring for evidence of shorts from the
42 outlets, from fixtures, so forth. There again, those were eliminated.
43
44 Q: Do you feel that you eliminated gas as a cause or an electrical cause as the
45 origin of this fire?
46

15
 Report of the Innocence Project Arson Review Committee

1 A: Yes.
2
3 Mr. Fogg did not explain how he was trained to examine electrical systems in appliances, nor
4 was there any significant cross-examination on the subject.
5
6 On the next page (161) he again referred to pour patterns, puddling effects were evidenced on
7 the floor.
8
9 On page 165, he described an unusual burning characteristic in States Exhibit 6.
10
11 Q: Does that photograph exhibit an unusual burning characteristic?
12
13 A: Yes, it does.
14
15 Q: Can you explain what it is?
16
17 A: Yeah. When a fire normally burns, it burns up. As heat rises, flames go up.
18 This burning characteristic had fire going under the threshold plate, which is very
19 unusual in that it should have been protected from flame itself under that base
20 plate.
21
22 This is the central misconception held by many fire investigators at that time, i.e., that fire burns
23 up and does not burn downward without help. Mr. Fogg was asked, To what do you attribute
24 that? and answered, Liquid being used to accelerate the fire.
25
26 The threshold plate was constructed of aluminum, which was fixed on top of a wooden base
27 plate. During post-flashover conditions (i.e. an under-ventilated fire), all of the fuel being
28 produced within the bedroom and hallway is not able to burn within the compartment. The flow
29 of unburned hydrocarbons (i.e. gaseous fuel) through compartment openings, such as open doors
30 and windows, allows the fuel to mix with the surrounding air and burn. This is commonly
31 referred to as vent burning. This phenomenon can produce significant thermal radiation exposure
32 to the threshold of an open doorway. In this case, the aluminum threshold, which has a relatively
33 high thermal conductivity, allows the heat that is radiated to its surface from above to be
34 transferred through the aluminum to the wood surface below. Such heat transfer is capable of
35 significant heating of the wood below, resulting in the charring of the wood. The wood does not
36 have to burn to produce such damageit only has to char. In addition, the burning of the base
37 plate below the threshold is precluded by the lack of access of air sufficient to produce flaming
38 combustion. Thus, ignitable liquids would not be capable of producing the charring on the wood
39 base plate.
40
41 Testimony about the flammable liquids was repeated several more times. At page 166, Mr. Fogg
42 stated, The staining left is very characteristic of liquid burning on the concrete. He was asked
43 further, Did you find evidence of an accelerant in this fire? and answered, Yes we did.
44
45 At page 167, describing the overall impression from the photographs he was asked,
46

16
 Report of the Innocence Project Arson Review Committee

1 Q: In your opinion are these clear examples of accelerants?

2
3 A: Very clear. Yeah.
4
5 It was widely taught that puddle shapes and liquid-type patterns were unequivocal evidence
6 of accelerants in 1992 when NFPA 921 was first issued. By 2004, it was well known and
7 generally accepted in the fire investigation community that such patterns were subject to
8 misinterpretation in fully involved compartments, and that the only way to credibly identify a
9 flammable liquid induced fire pattern was to obtain a positive laboratory result. What was
10 generally accepted in 1992 is no longer generally accepted, and has not been generally accepted
11 for most of the last ten years, except by a dwindling group of die-hard experts, who refuse to
12 accept the scientific data in front of them.
13
14 Report of the Texas State Fire Marshal
15
16 While the report of Fire Marshal Manuel Vasquez was not part of the trial record, an
17 examination of the report aids in the understanding of his testimony. Even when an investigator
18 does not convey all of his findings to the jury, the misinterpretations that an investigator believes
19 may result in stronger, more confident and therefore more believable testimony.
20
21 Page 2 of Mr. Vasquezs report is particularly instructive when he describes the hallway. He
22 states:
23
24 The view of the hallway towards the south disclosed that the east and west walls
25 on the north end had burn patterns from the base of the floor to the ceiling. The
26 fire did not burn through the ceiling. The burn pattern on the east and west wall of
27 the hallway disclosed a gradual climb in a 45 angle toward the south end and
28 clearly showed a V pattern. This V pattern is an indicator that the fire
29 originated on the floor near the north end. An examination of the baseboards on
30 the north end on the east and west wall disclosed a low char burn pattern. The
31 examination of the aluminum threshold at the base of the entrance door from the
32 porch into the center hallway disclosed a burn pattern underneath. This is an
33 indication that a liquid accelerant flowed underneath and burned.
34
35 V patterns are routinely observed in compartment fires during post-fire investigations and are
36 recognized and discussed in NFPA 921. A V pattern only establishes that a fuel package (e.g.
37 upholstered chair) burned during the course of the fire, resulting in the development of an
38 identifiable pattern. The pattern provides no information as to the time of ignition and thus,
39 cannot be used as an indicator of the origin of the fire.
40
41 Further, as stated earlier, it is impossible for flammable liquid to flow underneath a threshold and
42 burn, because there is a lack of available oxygen under the threshold to support flaming
43 combustion. The threshold is, however, capable of absorbing thermal radiant energy and
44 conducting that energy downward through the aluminum, resulting in the charring of the wood
45 below. The description of the baseboards being burned all the way to the floor level is a classic
46 indication of a fully involved compartment, wherein one would expect to find irregular patterns

17
 Report of the Innocence Project Arson Review Committee

1 burned into the floor. Instead of interpreting this pattern as the result of full room involvement,
2 however, Fire Marshal Vasquez interpreted it as a burn trailer, pour pattern, and puddle
3 configuration. Throughout his report, Fire Marshal Vasquez continues to use the phrase the
4 burn trailers, pour patterns, and puddle configurations when describing what are nothing more
5 than irregular patterns burned into the floor as the result of full room involvement. His report,
6 however, states that these patterns constitute evidence that the floor was poured with a
7 combustible liquid accelerant and ignited.
8
9 In addition to his misconceptions about the causes of burning on the floor level and the shape
10 that burning might take, Fire Marshal Vasquez held another belief, about crazed glass. He stated
11 at page 4,
12
13 The pieces of broken window glass on the ledge of the north windows to the
14 northeast bedroom disclosed a crazed spider webbing condition. This condition
15 is an indication that the fire burned fast and hot.
16
17 Actually, this condition is an indication that the glass was at one time hot and was rapidly
18 cooled. Crazed glass is not caused by rapid heating and cannot be caused by rapid heating. It is
19 always caused by rapid cooling. The misconception about crazed glass was widely held in the
20 United States and widely published in fire investigation texts. Additionally, this misconception
21 was taught at the National Fire Academy.36 In addition, the spider webbing condition can also
22 be the result of the mechanical breakage of window glass, which is consistent with Mr.
23 Willinghams statement that he used a pool cue to break out the bedroom windows on the front
24 porch.
25
26 In describing the concrete floor of the front porch, Fire Marshal Vasquez wrote, The
27 examination of the porch concrete floor disclosed an area of brown discoloration at the base of
28 the north wall and in front of the door to the central hallway. This discoloration, or brown
29 condition, is also an indication that a liquid accelerant burned on the concrete. This statement
30 by Mr. Vasquez has absolutely no basis in fact. The behavior of concrete in fires, including the
31 development of various colors, has been extensively studied.37 There is no scientific basis for
32 Mr. Vasquezs statement about the brown discoloration being an indication of the presence of
33 accelerants.
34
35 Fire Marshal Vasquez goes on to describe his determination that the fire had multiple origins.
36 It is generally accepted by the public that a fire having more than one origin was intentionally
37 set, because accidental fires almost always begin in one and only one place. The only credible
38 way to determine multiple origins, however (barring the existence of a surveillance video tape),
39 is to find areas of burning that are completely disconnected from other areas of burning in all

36
The myth of crazed glass indicating rapid heating was published in the NBS Fire Investigation Handbook in 1980,
in Section 1.1, entitled Cause and Origin. The only individuals given the credit in the list of contributors for this
paragraph in the Handbook were Steve W. Hill and Victor U. Palumbo, both of whom were employed by the
National Fire Academy.
37
For a more extensive discussion of the mythology of arson investigation, including myths about the behavior of
concrete in fires, see Lentini, J. J., Scientific Protocols for Fire Investigation, CRC Press, 2006, Chapter 8.

18
 Report of the Innocence Project Arson Review Committee

1 three dimensions. No such separated areas of unconnected burning existed in the Willingham
2 residence.
3
4 At page 5, Fire Marshal Vasquez arrives at the ultimate issue in this case by stating that because
5 his determination of the cause of the fire is different from the story told by the survivor, the
6 survivor must be lying. He states:
7
8 Further, based on the more than 20 indications of incendiarism and the behavior
9 of fire the account given by the occupant of how he escaped the fire is not
10 consistent with the facts. The account is determined to be pure fabrication. A fire
11 does not lie.
12
13 All of the authors have seen reports like this one. If the Fire Marshals determination is wrong,
14 his identification of the lies told by the defendant is equally wrong. The statement that a fire
15 does not lie is true, but we have all seen numerous instances where a fire was grossly
16 misinterpreted. This, sadly, is such an instance.
17

19
 Report of the Innocence Project Arson Review Committee

1 State of Texas v. Ernest Ray Willis

2
3 Trial Testimony of Edward Cheever
4
5 On July 28, 1987, Edward Cheever testified in the case of Texas v. Ernest Ray Willis. At that
6 time, he had been certified by the State of Texas as an arson investigator for less than two years.
7 LeRoy Brown was the lead investigator for the State of Texas on the Willis fire, but he was not
8 presented as a witness. The record is not clear as to why Mr. Cheever was presented instead of
9 Mr. Brown, but the record is clear that the prosecution wanted to avoid having the jury see Mr.
10 Browns report, or having either Mr. Cheever or Mr. Brown cross-examined on its contents.
11
12 On the day of Mr. Cheevers attendance at the fire scene, he had been a certified arson
13 investigator for eight months. He was still in training and was not allowed to handle cases on his
14 own. Mr. Brown was his trainer. On voir dire, Mr. Cheever did not take responsibility for
15 investigating the fire scene but stated, I assisted in the investigation. Nonetheless, he was
16 allowed to give opinion testimony. He stated that he concentrated his investigation in the living
17 room and dining room, and did not even take photographs of some of the bedrooms. He stated:
18
19 Initially, when we had finished the view of the exterior of the building and walked
20 into the inside of the structure, there were a couple of things that caught our
21 attention right off. First of all, the low burning on the walls almost to floor level.
22
23 Mr. Cheever, having been trained as most fire investigators were at that time, believed that low
24 burning was an indicator of accelerants on the floor when actually, in a room that is fully
25 involved, low burning is simply evidence that the room was fully involved.38
26
27 Mr. Cheever considered the low burning to be the most significant fire pattern that he saw. The
28 following exchange takes place on page 14 of his testimony.
29
30 Q: Okay. Well, of all the burn patterns, what is the most significant to you, sir?
31
32 A: The most highly significant would be the low burning to the floor level on
33 some of the walls, and the burn patterns that I observed on the floor itself.
34
35 Q: Low burning on walls?
36
37 A: Yes, sir.
38
39 Q: And the floor?
40
41 A: The burn patterns that I observed on the floor, yes, sir.
42

38
See the previous discussion of low burn patterns in post-flashover compartment fires. Such lengthy discussion will
not be repeated here.

20
 Report of the Innocence Project Arson Review Committee

1 Q: Alright. Now let me make a note of that, sir. Low burning on walls, what does
2 that indicated to you, sir?
3
4 A: The heat source that caused the burn pattern was at a low level.
5 Q: Okay. So that if you have one room thats burned floor to ceiling and another
6 room thats not, what does that indicate to you?
7
8 A: Indicates that the heat level in the room that burned from floor to ceiling was at
9 a much lower level in the room.
10
11 Q: Which might support the idea that was liquid combustibles there?
12
13 A: Thats true.
14
15 Q: Alright. Now burn patterns on the floor. Burn patterns on the floor you say are
16 another part of the significant burn patterns on which you are relying to base your
17 opinion; is that correct, sir?
18
19 A: Yes, sir.
20
21 Q: Alright. What are those burn patterns on the floor? What do you think about
22 those? What do they mean to you?
23
24 A: In this particular case they indicate to me the use of a flammable liquid.
25
26 Q: How much flammable liquid?
27
28 A: I have no idea.
29
30 As happened in the Willingham case, the States investigators in the Willis case relied on their
31 alleged ability to visually interpret the significance of irregular patterns on the floor in a fully
32 involved compartment fire. At the time of his testimony in 1987, such interpretations, although
33 wrong, were common. It is now well known now that in post-flashover compartment fires,
34 irregular patterns on flooring are commonly observed. Examples of such patterns were found in
35 tests conducted for the United States Fire Administrations Burn Pattern Study39. As previously
36 discussed, the ability to distinguish patterns produced by ignitable liquids from those in un-
37 accelerated compartment fires was not available at the time of this fire and subsequent
38 experimental testing has shown that it is not possible to correctly evaluate a fire in a fully
39 involved compartment as being the result of ignitable liquids on the basis of the appearance of
40 the floor.
41
42 Demonstrating his complete lack of understanding of compartment fire dynamics, the following
43 exchange occurred on page 21 of Mr. Cheevers testimony.

39
Shanley, J. H., Report of the United States Fire Administration Program for the Study of Fire Patterns, FA 178,
Federal Emergency Management Administration, United States Fire Administration, July 16, 1997.

21
 Report of the Innocence Project Arson Review Committee

1 Q: Assume for a moment, Mr. Cheever, that the fire had started at a high point
2 inside the house.
3
4 A: Yes, sir. Inside the house.
5
6 Q: Do you have an opinion as to how long it would take for the fire inside the
7 house to reach a point as low as is depicted in that photograph, and to cause the
8 damage it caused, as evidenced by those photographs?
9
10 A: Burning from a high level, just burning the fuel level, and coming down to
11 floor level?
12
13 Q: Yes, sir.
14
15 A: I dont know anything about how long it would take, but there wouldnt be
16 anything left of the house.
17
18 Q: Why would that be?
19
20 A: Because the fuel above the fire would burn first. And, as it burned up the fuel,
21 there would be nothing left behind.
22
23 Q: What do you mean by the use of the word, fuel?
24
25 A: Whatever it is that the fire itself is burning.
26
27 Q: Could that be the wood in the house?
28
29 A: Wood; yes, sir.
30
31 Q: Or any of the products inside the house?
32
33 A: Yes, sir. Anything that would burn.
34
35 Q: So in order for it to burn that low, it would have had to burn the house down?
36
37 A: Assuming that it was burning from a high level, and burning the fuel as it
38 went. Yes, sir.
39
40 Certainly, the concept of flashover, as well as the characteristics of post-flashover compartment
41 fires was well established at the time of this fire in 1986 as summarized by Drysdale40 in his
42 book on fire dynamics, first published in 1985. Also, the NFPA video Fire Power, produced in
43 1986, clearly shows the ignition and burning of carpet three minutes after flaming ignition of an
44 upholstered chair. The video also shows the compartment walls and ceiling still intact after
45 ignition of the carpet on the floor and subsequent post-flashover burning conditions within the
40
Drysdale, D., An Introduction to Fire Dynamics, John Wiley & Sons, New York, 1985.

22
 Report of the Innocence Project Arson Review Committee

1 compartment. More recently, the USFA burn pattern tests also showed that the test
2 compartments were still intact with significant burn damage to the floors in fire tests involving
3 both ignitable liquids and no ignitable liquids. Clearly, an accurate understanding of the behavior
4 of compartment fire dynamics was not part of Mr. Cheevers training.
5
6 Mr. Cheever later expressed an opinion about a low burn at a doorway, which, although widely
7 accepted at the time, has since been shown to be a false interpretation.41 At page 27, he testifies
8 as follows:
9
10 A: Okay. This is States Exhibit 42. In the doorway you will notice that the
11 doorjamb is burned completely down to the bottom of the doorjamb. This would
12 be referred to as a low burn.
13
14 Actually, this is a normal phenomenon when one of the rooms on either side of the doorjamb
15 achieves full room involvement. V patterns at doorways, once thought to indicate that the
16 arsonist had trailed liquid accelerant through that doorway, are now known to be the result of
17 normal fire extension.42
18
19 At page 31, in describing irregularly shaped edges of a fire pattern, Mr. Cheever provided the
20 following testimony.
21
22 Q: What does it appear to be, to you?
23
24 A: It appears to be burned areas resembling how a liquid would have run and
25 burned on that surface.
26
27 Again, in the context of a fully involved compartment, irregularly shaped patterns have no
28 meaning with respect to the potential of the introduction of an ignitable liquid, although in 1987
29 it was common for fire investigators to refer to irregularly shaped edges of patterns as evidence
30 of such. Sadly, there still exists a cadre of fire investigators who make similar false
31 interpretations today.
32
33 At page 34, Mr. Cheever is shown a photograph of low burns on a carpet and is asked if there
34 is an explanation.
35
36 Q: Do you have an explanation as to what may have caused the low burn on the
37 wall and on the floor level?
38

41
The 1992 edition of NFPA 921 at page 24, section 3-7.2, discusses ventilation-generated patterns. It states: In a
fully developed room fire where hot gases extend to the floor, the hot gases may extend under the door and cause
charring under the door and possibly through the threshold. This language has appeared in all of the editions of
NFPA 921. In the 2004 edition, it is found on page 32, at section 6.2.3.2.
42
See NFPA 921, 2004 edition at page 32, section 6.2.3.4.2. Where fresh air ventilation is available to a fire, it is
not uncommon to find locally heavy damage patterns on combustible items close to the ventilation opening, patterns
which may have no relevance to the point of origin.

23
 Report of the Innocence Project Arson Review Committee

1 A: Yes, sir. My opinion is that there was a flammable liquid applied to the floor in
2 that location, and, as it burned, the heat and flame rising from it burned the wall in
3 that manner.
4
5 Apparently, the constant repetition eventually persuaded the jury to believe the testimony, even
6 though, as previously discussed, it was seriously flawed. Low burn patterns are a normal artifact
7 in any compartment fully involved in fire.
8
9 Another question on page 35 was put to Mr. Cheever.
10
11 Q: Do you have an opinion as to how the fire could have burned the doorjamb at
12 that lower point?
13
14 A: In my opinion, there was some type of flammable liquid applied there. There
15 was no other fuel source there that would have indicated it would have burned in
16 that manner.
17
18 Actually, all that is required to generate this type of pattern is for the room to be on fire on one
19 side of that doorjamb. The only way to conclusively identify the existence of a flammable liquid
20 in the Willis situation is for the laboratory to report a positive result. All of the samples
21 submitted to K-Chem Laboratories, which at the time was one of the leading laboratories in the
22 country, came back negative. (In the Willingham case, all but one sample came back negative.
23 This sample was collected from the front porch, where there was known to be a container of
24 charcoal lighter fluid.) Other than Mr. Cheever's opinions and those of Mr. Dailey, who
25 suffered from all of the same misconceptions, there was no credible evidence presented to the
26 jury that flammable liquids were involved in any way in the Willis fire.
27
28 At page 37, a line of questioning begins about burning underneath furniture. As previously
29 discussed in the analysis of the Willingham testimony, burning under furniture is actually a
30 normal consequence of full room involvement. Mr. Cheever, however, opined that burning was
31 the result of the flammable liquid running underneath the furniture. His testimony in several
32 places states that he believed the floor was sloped somehow though he neither made any
33 measurement of the slope, nor did he document the behavior of liquids on the alleged slope. He
34 simply assumed that the burning under the furniture was the result of flammable liquid running
35 to that location. In a disingenuous attempt to discredit another hypothesis for the burning under
36 the furniture, the prosecutor asked Mr. Cheever about falling debris, for example burning ceiling
37 tiles. Mr. Cheever of course states falling debris would have fallen on top of the couch, not
38 under. Like most fire investigators at the time, Mr. Cheever had no concept that flashover and
39 full room involvement would cause burning underneath a piece of furniture, or that the furniture
40 item may have been made of polyurethane foam which can melt, flow into a pool below the
41 furniture and burn as a liquid on the floor.
42
43 Mr. Cheever, at page 46 of his testimony stated that he believed because of the extent of damage
44 on the couch in the Willis residence, someone must have poured liquid accelerant on it. Again,
45 this was never validated by a positive laboratory analysis.
46

24
 Report of the Innocence Project Arson Review Committee

1 In a shocking admission of an inadequate investigation, Mr. Cheever was asked at page 55

2 whether he had investigated beyond the living room and dining room.
3
4 Q: How much more investigation did you do into the house?
5
6 A: Beyond those two rooms?
7
8 Q: Yes sir.
9
10 A: We didnt.
11
12 The conventional wisdom at the time was that a fire should be investigated from the area of the
13 least burning to the area of the greatest burning. Even though, on cross-examination, Mr.
14 Cheever admitted that photographs of one of the bedrooms indicated damage in excess of the
15 damage to the living room and dining room, he admits that he investigated only the living room
16 and dining room.
17
18 In another inappropriate investigative technique, Mr. Cheever failed to document his
19 investigation. At page 57 the following exchange took place:
20
21 Q: Okay. So you are testifying from memory today without the assistance of any
22 notes other than the Fire Marshals report?
23
24 A: Basically, yes sir.
25
26 Mr. Cheever stated that he did not take any photographs nor did Mr. Brown take any
27 photographs at the fire scene. Even by 1986 standards, this failure to document his observations
28 evidenced a negligent and unprofessional approach to his work.
29
30 At page 66, when the Defense Counsel attempted to cross-examine Mr. Cheever about the
31 contents of Mr. Browns report, the Prosecutor objected to any testimony from a document
32 thats not in evidence and the objection was sustained.
33
34 In a remarkable mirror of the Willingham case, Mr. Cheever testified about burning on the porch.
35 He stated at page 76:
36
37 My opinion would be limited strictly to the fact that the porch was burning at
38 floor level, and I saw no evidence of any kind of fuel other than the porch itself
39 that would have burnt at that low level and it doesnt normally do that.
40
41 Actually, porches like the Willingham and Willis porches frequently burn at floor level when the
42 rooms adjacent to the porch flashover and the windows break out. The under-ventilated
43 conditions within the adjacent compartment result in the outflow of unburned hydrocarbons
44 through such openings (i.e. the windows). When sufficiently mixed with the outside air, the
45 unburned fuel can ignite, resulting in flames extending from the opening. Such flames can
46 transfer heat to as well as ignite adjacent combustible surfaces such as wood ceilings or floors of

25
 Report of the Innocence Project Arson Review Committee

1 porches. Thus, it is not at all uncommon to see porch and deck floors burned or discolored by
2 fires emanating from adjacent rooms.
3
4 During his cross-examination, Mr. Cheever was confronted with the fact that he had not
5 photographed bedroom #2, but someone else had. He was asked:
6
7 Q: If bedroom #2, by photographic evidence, were shown to be at least as heavily
8 damaged as the living room, would that change your opinion about the origin of
9 this fire?
10
11 A: No, sir.
12
13 He had previously testified that the reason he focused on the living room and dining room was
14 that those rooms were more heavily damaged. It is a serious lapse of basic fire investigation
15 methodology that a room that is arguably as heavily damaged as the living room and dining room
16 was not documented and was simply ignored by the Fire Marshal.
17
18 Mr. Cheevers firm but inaccurate belief in the unidirectional flow of heat in a fire was brought
19 out again on cross-examination at page 93 in the following exchange:
20
21 Q: Okay. If there were testimony that there was a magazine rack in that area and
22 if that magazine rack caught on fire, lots of papers and magazines, or whatever,
23 would that contribute to that burning into the floor over there?
24
25 A: As far as making the type of pattern that we saw?
26
27 Q: Yes, sir.
28
29 A: In my opinion, no.
30
31 Q: Okay. Because fire burns up, not down?
32 A: Thats correct.
33
34 At page 101, Mr. Cheever reveals his flawed view of radiant heat in the following exchange:
35
36 Q: Radiant heat. And I wonder if you can briefly explain that to me again, sir, that
37 principle.
38
39 A: Okay. The principle is, basically, that if you have one burning object close to
40 another one, that the energy of heat will be transmitted by waves of energy, and
41 that the other object nearby will increase in temperature.
42
43 The transmission of thermal radiant energy from a hot gas layer to the floor, as well as post-
44 flashover conditions are precisely what cause the irregular patterns and low burning observed by
45 the Fire Marshal, but he fails to make that connection. Defense Counsel apparently had some
46 education in that regard as evidenced by the following exchange at page 103:

26
 Report of the Innocence Project Arson Review Committee

1
2 Q: Alright. That in some house, you would agree with me, wouldnt you, sir,
3 where - - in some situations where you might absolutely know there was not
4 flammable liquid poured, you can get some marks on the floor that are not due to
5 fall down of material but, but are due to what we call radiation. I might call it re-
6 radiation but radiation from the bottom down; is that correct, sir?
7
8 A: That would be a possibility, but I have never experienced that.
9
10 What the Fire Marshal has admitted to here is a lack of knowledge and experience with the most
11 common cause of low burning in fires. The exchange continues:
12
13 Q: Not within the realm of your experience, but because you recognize the
14 principle, you recognize that its possible?
15
16 A: Yes, sir.
17
18 Q: Okay. Alright. Talking about liquid pours, pouring of liquid, material,
19 flammable liquids on carpets and floors, would you agree with the statement, sir,
20 that occasionally extensive and irregular damage to a floor can be an indication of
21 flammable liquid use?
22
23 A: Yes; thats possible.
24
25 Q: Okay. Can you agree, also, with the statement that occasionally caution should
26 be used because the carpet fabrication or other circumstances can also create the
27 same appearance?
28
29 A: Im not sure that I would use the same terminology in saying the same
30 appearance, but a similar appearance.
31
32 Q: Or a similar appearance?
33
34 A: Yes, sir.
35
36 This could have been a pivotal admission had the jury recognized it. What the Fire Marshal was
37 saying in this exchange was I know it when I see it. The fact is that the only way to make a
38 valid distinction between an irregular fire pattern caused by an ignitable liquid and an irregular
39 fire pattern caused by radiation is to collect samples and find the residue of the ignitable liquid.
40 In the absence of such a positive finding, the pattern must be attributed to radiation rather than an
41 ignitable liquid, but in far too many cases, fire investigators insist on their ability to recognize
42 arson, even where it does not exist.
43
44 In the last question in his cross-examination, Mr. Cheever admits to an ignorance of the statistics
45 that have been collected for decades on fatal fires. The following exchange occurred:
46

27
 Report of the Innocence Project Arson Review Committee

1 Q: Okay. We will move on, then. One last question Marshal Cheever. Would you
2 agree with me that smoking materials are the leading cause of fatal fires in home
3 in this nation?
4
5 A: Im not familiar with those statistics, no, sir.
6
7 Historically, smoking materials have been the leading cause of fire deaths in the United States.43
8 Roughly one in four fire deaths is caused by smoking materials. A fire investigator who is
9 unaware of the leading causes of civilian fire deaths is unlikely to be able to investigate them
10 accurately.
11
12 At page 128, in recross-examination, the following exchange took place:
13
14 Q: Okay. Now, in your experience, training, and your reading publications to keep
15 up-to-date, have you or have you not heard of the phenomenon that radiation can
16 cause irregular patterns?
17
18 A: I have never run across that, no, sir.
19
20 Mr. Cheever again states that he is not familiar with radiation causing irregular patterns, which
21 has a direct bearing on the validity of his opinion concerning the presence of ignitable liquids
22 and the validity of his determination that this fire was the result of arson. As demonstrated in the
23 outcome of the trial in this case, such ignorance conveyed to the jury provides sufficient
24 momentum for miscarriages of justice.
25

43
Source NFPA.org.

28
 Report of the Innocence Project Arson Review Committee

1 Trial Testimony of John Dailey

2
3 John Dailey was a retired FBI agent, who, at the time of the trial, was working as a fraudulent
4 claims investigator for J.C. Penney Insurance Company. At the time of the fire, he was employed
5 by Cimarron Insurance Company, which insured the residence. He took a 90-hour arson
6 investigation course in May of 1983 and was certified in the State of New Jersey as an arson
7 investigator. Mr. Dailey stated that he spent 2 days at the fire scene. He stated that he took ten
8 samples from the scene and submitted them to a laboratory, and all of them tested negative for
9 the presence of ignitable liquids. He stated that it was not unusual to receive a negative finding
10 on laboratory samples. His investigation took place after the living room and dining room had
11 been cleaned off and washed down. He hired six individuals to clean the debris out of the rest of
12 the house in order to examine the floors.
13
14 Mr. Dailey harbored most if not all of the same misconceptions harbored by Mr. Cheever and by
15 the investigators in the Willingham case. In describing the way fire spreads through a doorway
16 he states:
17
18 A: Okay. This shows that you had a lot of fire coming out of the front door, and
19 you have low burning on the doorjamb all the way down to the bottom. And,
20 usually, when fire comes out of a door, it will come out in the upper areas and you
21 will get a V pattern where it will come out. This shows me we had low burning
22 right in here because the whole thing it burnt from top to bottom.
23
24 Q: Mr. Dailey, why would fire necessarily want to come out of the top of the
25 door? Why wouldnt it come out the bottom?
26
27 A: Well, its based on the theory that fire goes up and seeks the nearest exit. So if
28 its near a door, it will go up and out the upper portions of the window or door.
29
30 Q: Is there instances where fire goes down?
31
32 A: There could be, but, generally, the pretty basic rule is it goes up.
33
34 Q: If it goes down, is it defying the force of gravity.
35
36 A: Well, I dont know about gravity, but firethere could be an instance where
37 fire could bank down in a room if the room were closed, and you had enough fuel,
38 and it would go lower, but it would be unusual.
39
40 Actually there is nothing at all unusual about fires occurring in closed rooms as described by Mr.
41 Dailey, nor is it unusual to find burning all the way to the floor level of a doorjamb where
42 ignitable liquids were not introduced. The important point is that Mr. Dailey lacks the
43 fundamental knowledge of compartment fire dynamics. More specifically, he is apparently
44 unfamiliar with the characteristics of post-flashover compartment fires that would explain the
45 low burns without the introduction of ignitable liquids.

29
 Report of the Innocence Project Arson Review Committee

1 In yet another mirror of the testimony in the Willingham case, Mr. Dailey describes burning
2 underneath the doorjamb from inside the living room. He states at page 29:
3
4 A: You can see where flammable liquid ran down and really burned underneath
5 the doorjamb here.
6
7 Q: Why wouldnt the fire just have got in under there?
8
9 A: Well, sir, fire just does not travel up under, does not make those patterns.
10
11 Q: Fire doesnt have the ability to go underneath that doorjamb and burn on the
12 inside?
13
14 A: No sir, not and leave patterns like this.
15
16 The damage to the wood below the doorjamb does not have to be the result of a fire burning
17 underneath. Wood will char and create patterns when heated to temperatures below those
18 required for flaming ignition to occur. The rise in temperature of the wood below the doorjamb is
19 the result of heat transfer from exposure to the fire conditions above the sub-floor. It is the lack
20 of oxygen to sustain combustion that precludes both fire and flammable liquids from going
21 underneath a doorjamb and causing damage to the wood subsurface, which is a concept that Mr.
22 Dailey unquestionably failed to take into account in the course of his investigation.
23
24 On pages 32 and 33, when describing the condition of the couch, Mr. Dailey states:
25
26 A:and, on the couch, it unusual that a piece of furniture will be that totally
27 consumed. Usually the firea normal fire will burn off the top of the furniture
28 and go down some, but you will have quite a bit left of the bottom frame. The
29 significance of this is that on the south end of the couch toward the door, the
30 springs were annealed. And when I say, annealed, I mean that all of the tension
31 was gone out of them. They were real flat. And that is generally onlythat only
32 occurs when you have intense heat on the springs of a couch.
33
34 And when I see a couch like that in a fireyou can see how flat the springs are.
35 They have annealed, or lost their temper. That is generally an indication that an
36 accelerant had been placed on there that caused this intense fire. Like I say,
37 furniture generally will not burn like that. Furniture will burn the upper portions
38 of it. And whenever an investigator sees a piece of furniture like this where the
39 springs have been annealed, or distempered, then there is a very strong indication
40 that an accelerant had been put on the couch.
41
42 It is not unusual for upholstered furniture to be totally consumed in a compartment fire.
43 Upholstered furniture, like other fuel packages, can be totally consumed if post-flashover
44 conditions continue for a time sufficient to burn all of the materials. Thus, the fuel loading in the
45 room, the ventilation conditions, as well as the timing of fire suppression activities play a

30
 Report of the Innocence Project Arson Review Committee

1 significant role in the duration of post-flashover conditions and thus, how much of the fuel item
2 is consumed.
3
4 The testimony concerning the annealing of the springs was given in 1987, two years before
5 Tobin and Monson, two scientists at the FBI laboratory debunked most of the mythology about
6 annealed springs providing fire investigators any information about the intensity of a fire. If one
7 end of a sofa is exposed to more heat than the other, certainly, the form of the springs may
8 change, but one cannot make a valid conclusion about whether the fire was fast or slow
9 based on the condition of the springs.44 Ironically in the 1980s the same spring conditions were
10 sometimes interpreted to indicate a smoking fire, although that fact was apparently unknown
11 by Mr. Dailey at the time.
12
13 Further misinformation about the meaning of the condition of the couch was conveyed to the
14 jury in the following exchange:
15
16 Q: What if someone was to go to sleep on a couch and drop a cigarette? Would it
17 cause that type of damage to that item of furniture?
18
19 A: No, sir.
20
21 Q: Would you also be able to determine a point of origin in that couch as to where
22 the fire started?
23
24 A: No. All I can say is, there was more fire on the south end than on the north
25 end.
26
27 Q: Okay. And you dont believe it was caused by a cigarette?
28
29 A: No, sir. I have been in schools where we have tried to ignite furniture with
30 cigarettes, and its very, very difficult. And if you get them ignited, you get a little
31 smoldering fire.
32
33 This is simply false45, but unfortunately, the jury had no way of knowing that this expert was
34 wrong. If all that happened when cigarettes ignited furniture was a little smoldering fire, logic
35 dictates that smoking materials would not be the number one cause of fire deaths. As a result of
36 such statistics, extensive research, in the last three decades46, 47, 48, has been performed with

44
Tobin, W. A. and Monson, K.L., Collapsed Spring Observations in Arson Investigations: A Critical Metallurgical
Evaluation, Fire Technology, 25(4), 1989, 317.
45
The Bureau of Fire Research (BFRL) at the National Institute of Standards and Technology (NIST) reports in a
study on fire safe cigarettes: The most recent statistics (1997) from the U.S. Consumer Product Safety Commission
indicate that about 25 percent of all U.S. fire fatalities occur when a smoker falls asleep in bed or a lighted cigarette
is dropped on a couch or chair. The full report is available at the BFRL website:
http://www.bfrl.nist.gov/info/fire_safe_cig/questions_and_answers.htm
46
Damant, G. H., Cigarette Induced Smoldering in Flexible Polyurethane Foams, Consumer Product
Flammability Vol. 2, 140 -153, June, 1975.
47
Babrauskas, V., and Krasny, J. F., Fire Behavior of Upholstered Furniture, NBS Monograph 173, National
Bureau of Standards, Gaithersburg, MD, November 1985.

31
 Report of the Innocence Project Arson Review Committee

1 respect to the propensity of ignition of upholstered furniture. Cigarettes in the crevices of

2 upholstered furniture can and do cause fires. The cigarette first produces a smoldering fire, as
3 testified by Mr. Dailey. The significant knowledge that Mr. Dailey failed to mention to the jury
4 is that smoldering fires in upholstered furniture can transition to a flaming fire that behaves no
5 differently than if the upholstered furniture had been ignited by a flaming ignition source.
6
7 Prior to actually showing the photograph of the couch to the jury, the following exchange took
8 place:
9
10 Q: Okay. Is there any significance to the fact that that pour pattern seems to run
11 underneath the couch there?
12
13 A: Yes, sir. There is a significance. Actually, two possibilities: one, that the
14 flammable liquid pour pattern shows that a flammable liquid was poured under
15 the couch. The other possibility, not as strong, is that enough was poured on the
16 couch to where it might have dripped through and caused that damage to the
17 floor. There are two possibilities.
18
19 In a completely involved room, there is a third dominant possibility, which explains the
20 condition of the couch: its condition is nothing more than a part of the natural progression of a
21 compartment fire, as previously discussed. That possibility was not put before the jury.
22 Essentially, the State gave the jury two incendiary scenarios from which to choose, not even
23 suggesting the possibility of a naturally occurring fire.
24
25 As if constant repetition would make the assertion true, Mr. Dailey goes on at page 37 to state:
26
27 A: As I said, fire ordinarily will not burn down but, in this instance, I was struck
28 by the fact that the wooden portion, including the two legs of the chair, were
29 burned at floor level. Of course, here, part of that liquid burn pattern is in front of
30 the chair, which, no doubt, caused the damage to the lower portion.
31
32 Q: Is it unusual for you to go into a structure where there has been a fire and find
33 so many items or articles of furniture burned at floor level?
34
35 A: Its not very usual.
36
37 Q: Does that cause you suspicions?
38
39 A: Thats one of the things we look for is low burning; yes sir.
40
41 Mr. Daileys misinterpretations of the fire patterns on the floor also allowed him to infer a
42 motive of the person pouring the alleged ignitable liquid.
43

48
Ohlemiller, T. J., Villa, K. M., Braun, E., Eberhardt, K. R., Harris, R. H., Lawson, J. R., and Gann, R. G., Test
Methods for Quantifying the Propensity of Cigarettes to Ignite Soft Furnishings, NIST SP 851, National Institute of
Standards and Technology, Gaithersburg, MD, August, 1993.

32
 Report of the Innocence Project Arson Review Committee

1 Q: Do you have an opinion on whether or not the effective escape routes from that
2 back area were closed off, Mr. Dailey?
3
4 A: Yes, sir. I would say so. You definitely couldnt go out the front door or the
5 back door.
6
7 Mr. Daileys testimony continues for many pages repeating assertions not validated by
8 laboratory analysis that there was flammable liquid on the floor.
9
10 Showing a surprising lack of knowledge about compartment fire dynamics, Mr. Dailey described
11 the fires behavior at the ceiling as resulting from the relative quantity of flammable liquids on
12 the floor.
13
14 A: Well, the worst burning was in the living room and dining room. And when I
15 first went into the housewe alwaysof course, one of the thingsyou check
16 the ceiling. And I noticed that in the living room and dining room it had
17 penetrated the ceiling, which indicates that you had an intense fire on the floor.
18 And in the kitchen the ceiling was not penetrated, and it was - - obviously, less
19 flammable liquid had been placed in there, and the fire damage was as I showed
20 you on the kitchen cabinets, they were not severely burned. So the main damage
21 was in the living room and dining room where it penetrated the ceiling.
22
23 Ceilings, whether constructed of gypsum wallboard, plaster lath, or combustible ceiling tiles can
24 and do fail in compartment fires that have achieved post-flashover conditions without the
25 introduction of ignitable liquids. It is the burning of a significant fuel load that causes a
26 compartment to achieve flashover. While the burning duration of the flammable liquids on the
27 floor is insufficient to achieve flashover conditions in the absence of other significant fuel
28 packages, their presence allows more fuel to become involved in a shorter time frame (i.e.
29 accelerated) and thus, the onset of flashover conditions is achieved sooner than without ignitable
30 liquids. An example of a compartment fire that was initiated with flammable liquids within a
31 compartment and where the ceiling was not penetrated is included in Test 6 of the USFA Fire
32 Pattern Tests49.
33
34 Mr. Dailey, at page 77, evidences a lack of understanding of the concept of fuel load, when he
35 states:
36
37 but the fact remains, there was no fuel load in these two rooms to create such a
38 fire as to penetrate the ceiling and to destroy the furniture.
39
40 In this case, the furniture itself was the fuel load, and Mr. Daileys statements that another fuel
41 load would be required to destroy the furniture evidences either a lack of understanding of
42 compartment fires or else an extreme bias in favor of finding arson. Many pieces of upholstered
43 furniture incorporate polyurethane foam, which is capable of releasing tremendous amounts of
44 energy. A typical sofa can release two to three megawatts of heat energy. It is not uncommon for

49
Shanley, J. H., Report of the United States Fire Administration Program for the Study of Fire Patterns, FA 178,
Federal Emergency Management Administration, United States Fire Administration, July 16, 1997.

33
 Report of the Innocence Project Arson Review Committee

1 a single burning sofa to bring a traditionally sized residential room to flashover in less than five
2 minutes.
3
4 Later in his testimony, when asked about the dining room table, Mr. Dailey stated:
5
6 I didnt consider it a fuel load. My experience on these house fires that your
7 heavier pieces of furniture like that, you can have a really good fire going, a
8 normal progressive fire, but a solid oak or heavy wood table will sustain charring,
9 but it will not be consumed. You just do not get that kind of heat generated,
10 particularly at floor level.
11
12 Q: Would there be something left of a piece of furniture thats that heavy or that
13 well made?
14
15 A: Ordinarily, there would be, yes, sir.
16
17 Q: Well, what does the complete consumption of that dining room set indicate to
18 you Mr. Dailey?
19
20 A: It indicates to me that we had an accelerant present around it, which caused
21 total consumption of it.
22
23 As is typical in this type of case, Mr. Dailey then compares the defendants story to his own
24 flawed interpretation based on the fire patterns. Mr. Willis stated he had been asleep on the
25 couch and woke to find fire. Mr. Dailey was asked:
26
27 Q: Okay. Do you think its possible to run through flames like that and live?
28
29 A: Well, I think you would be burned. I dont know about if it would be fatal or
30 not.
31
32 Q: The degree of intensity of that fire, Mr. Dailey, would it be possible for
33 someone to have done the feat that this defendant did without having - -
34 without suffering some indication of burns on their body?
35
36 A: All I can fall back on is common sense and just say that if you run through a
37 very flammable area, flames coming up, I would think you would get burned.
38
39 Thermal burns to bare skin are a function of the intensity of the exposure and the duration of the
40 exposure.50 In order to determine the ability of an occupant to escape from a fire without injury
41 requires knowledge of the fire conditions (i.e. the location and size of the fire or the exposure).
42 The assumption that Mr. Dailey makes is that at the time Mr. Willis awoke, the fire was of a size
43 and location that would require him to run through flames. There is no evidence to support such
44 an assumption. Since, in general, fires grow in size with time and start with a no fire condition.

50
SFPE, Engineering Guide: Predicting 1st & 2nd Degree Skin Burns from Thermal Radiation, Society of Fire
Protection Engineers, Bethesda, MD, March, 2000.

34
 Report of the Innocence Project Arson Review Committee

1 Thus, the time he awoke relative to the size and location of the fire are required elements in order
2 for Mr. Cheever to accurately assess the conditions to which Mr. Willis would have been
3 exposed. Mr. Daileys testimony did not include such an analysis. Any assumption on Mr.
4 Daileys part as to the size and location of the fire at the time of discovery would have been
5 based on misinterpretations of the evidence and, thus unreliable.
6
7 Report of the Texas State Fire Marshal
8
9 LeRoy Brown, who was the senior investigator on the scene with Edward Cheever, authored this
10 report. Mr. Brown did not testify at the trial; however, because the prosecutor did not want him
11 to be subject to cross-examination on the contents of this report.
12
13 The report provided conclusions, but no bases for those conclusions. To the extent that the report
14 described the scene, important details of the description were reported inaccurately. Mr. Brown
15 wrote The exterior walls were slate. The interior walls and ceiling were sheetrock. Actually,
16 the exterior walls were asbestos shingles that had recently been re-covered with combustible
17 pressed-wood paneling, and the interior walls were covered with thin, highly combustible
18 paneling.
19
20 Mr. Browns failure to accurately assess the interior finish severely impaired his ability to assess
21 how a fire would normally be expected to behave in such a structure. Had he testified, his
22 credibility would have been destroyed because of his lack of care on the fire scene. He stated in
23 his report Upon arrival, this investigator and investigator Edward Cheever conducted a
24 thorough and systematic fire scene investigation. Presumably, Mr. Cheever also failed to make
25 the necessary observations about the interior finish, but because he did not sign his name to this
26 report, he was able to avoid cross-examination on this serious error.
27
28 Nowhere in the report are the fire patterns described. Nowhere in the report is any mention of the
29 fuel packages that burned, the condition of the doors and windows, and nowhere in the report is
30 there a discussion of samples collected, sent to the laboratory, and analyzed and found to contain
31 no ignitable residue. In short, the report provides the reader with very little information other
32 than the opinion of the investigator, which is based on a seriously flawed investigation.
33
34 Report of John Dailey
35
36 Mr. Daileys investigative report covered 18 pages, and was certainly more descriptive than the
37 Fire Marshal report prepared by Mr. Brown.
38
39 Interestingly, Mr. Dailey stated that he believed that there was a separate origin of the fire with
40 the use of flammable liquids in bedroom number 3, a finding which he found it necessary to take
41 back during his direct testimony. Further, he opined in his report that he believed that methanol
42 was the ignitable liquid used, thus explaining the lack of positive laboratory results. Nowhere in
43 his trial testimony was this opinion elicited.
44
45 The report begins with a description of the risk followed by a section entitled Fire Officials. It
46 was noted that in this section that both of the Willis cousins, Billy and Ernest, were barefooted

35
 Report of the Innocence Project Arson Review Committee

1 when the Fire Department arrived. Mr. Dailey apparently found it significant that neither Billy
2 nor Ernest showed any emotion, as he mentioned it three times in the space of one page of text.
3
4 A description of a suspect's failure to display what an investigator considers an appropriate
5 amount of emotional distress is an unfortunate common theme in wrongful prosecutions and
6 convictions. Generally, people in this situation are in shock, and the emotional display is not
7 predictable, nor should it form the basis of any conclusions. Furthermore, the assessment by the
8 States witness of the proper amount of distress to be shown by a fire victim lacks any
9 scientific validity.
10
11 Mr. Daileys description of the fire scene inspection runs from page 4 to page 10 of his report.
12 He noted that all the circuit breaker switches were in the off position but failed to comment on
13 that observation other than to state that The circuit connectors did not show any signs of
14 overheating or shorting.
15
16 Typically, but with a few exceptions, circuit breakers have three positions: on, off and tripped.
17 Finding all breakers in the off position suggests that they had been moved since the fire. Mr.
18 Daileys characterization of the condition of the circuit breakers, and the lack of specific
19 overheating or shorting evidence, demonstrates his lack of knowledge to properly assess and
20 eliminate electricity as a potential fire cause. The lack of either condition does not in any way
21 preclude the electrical system from causing the fire. Looking at the circuit panel does not
22 eliminate anything electrical in the structure. One needs to look at the entire system including the
23 loads and the distribution system.
24
25 By the second page of his description of the fire scene inspection, Mr. Dailey is describing
26 severe flammable liquid burn patterns that had gone through the carpeting, the foam rubber
27 padding, the asphalt tile covering and into the plywood sub flooring. From this point on, he
28 constantly refers to flammable liquids. On page 6, he refers to his interpretation of the burning
29 damage in bedroom number 3, Along the north edge of the bed was a burn pattern in the rug
30 which appeared to be consistent with a flammable liquid having been poured along the bed in a
31 trail towards the door leading into the kitchen.
32
33 All this suggests is that Mr. Dailey, like every other fire investigator, is incapable, by visual
34 observation, of distinguishing ignitable liquid patterns from patterns produced by thermal radiant
35 heat transfer in fully-developed compartment fires.
36
37 Mr. Dailey, on page 7, indicates that he believes that flammable liquids cause more intense
38 burning than other types of fuel packages, another appealing notion that is simply untrue. The
39 popular reason a fire setter utilizes a flammable liquid is to spread the fire quickly, thinking that
40 it burns more intensely. In fact, in most set fires, the flammable liquid is largely consumed
41 within the first few minutes. He stated, at page 7, while describing the dining room set, No trace
42 of this dining room set could be found in the debris and it was presumed that the fire was so
43 intense on the floor at this point that the entire dining room set was completely consumed. There
44 was also a small china closet, which the tenants stated had been completely consumed by the fire
45 as he could not find any remnants of it.

36
 Report of the Innocence Project Arson Review Committee

1 On page 8, he again returns to bedroom number 3 and describes a flammable liquid pattern
2 running along the north edge of the bed. He states Photographs 53 through 97 were made after
3 the complete cleanup of the house and clearly show the burn patterns in the carpeting in bedroom
4 number 3. In the linoleum in the kitchen as well as those already described in the dining room
5 and living room. He later on page 8 refers again to the flammable liquid burn patterns in
6 bedroom number 3.
7
8 Mr. Daileys improper methodology for eliminating accidental fires becomes clear in the fourth
9 paragraph on page 9 where he states, Any accidental fires are considered to have been
10 eliminated as the fire obviously started on the floor. Later he states, It is felt that one
11 contributing factor to the spread of the fire was the type of wall paneling used throughout the
12 house which is the highly flammable type. He apparently (and selectively) did not consider this
13 highly flammable paneling to have played a significant role in the spread of the fire, instead
14 choosing to blame the spread on the presence of methanol or some other flammable liquid.
15
16 He continues on at page 9 to state, Other factors which substantiate an unnatural and set fire are
17 the complete consumption of the sofa in the corner of the living room against the south wall, the
18 severe burning of the easy chair which was in the northeast corner of the living room, and the
19 severe burning and uneven burning of the couch which was found on the west wall of the living
20 room. All of these artifacts, in fact, occur in accidental fires. He then goes on to describe the
21 annealing or collapse of springs on the couch, which Showed that a flammable liquid may have
22 been poured on that end of the couch.
23
24 At page 17, Mr. Dailey provides his conclusion in a section entitle Determination of Origin and
25 Cause where he states, Based on investigation to date it is believed that the origin of the fire
26 probably started in bedroom number 3 where a small amount of flammable liquid had apparently
27 been poured along the bed. This is so because there was no complete connecting trail of a
28 flammable liquid pattern from bedroom number 3 directly into the kitchen where a large amount
29 of flammable liquid had been poured by the arsonist.
30
31 It is not clear what caused Mr. Dailey to change his mind about the origin in bedroom number 3,
32 although the testimony of fire fighter Robbie Dominguez, who attempted to enter the room and
33 saw no fire on the floor, may have persuaded him that his original interpretation of the floor
34 patterns was wrong.
35
36

37
 Report of the Innocence Project Arson Review Committee

1 The State of the Art in Fire Investigation Prior to 1992

2
3 Prior to 1992 the state of the art in fire investigation was, in a word, dismal. Fire investigators, by
4 and large, were, and continue to be, individuals without any serious training in scientific
5 methodology. More experienced fire investigators would mentor less experienced fire
6 investigators, and pass on what became a collection of myths. Many investigators, who obtained
7 their basic training before 1995,51 were trained with misinformation and misconceptions. Some
8 of those investigators have taken very little additional training since then, and of those, many
9 refuse to recognize how flawed their early training was.
10
11 No one would contend that there was any malice involvedmost investigators, including most
12 of the undersigned, were simply misinformed. Fire investigators were generally law enforcement
13 officers or fire marshals whose job was to catch arsonists. They learned to recognize arson
14 from their experienced mentors, and by attending weekend seminars involving test fires,
15 typically set using a flammable liquid, that were not allowed to burn beyond flashover. Most fire
16 investigators begin their careers with little, if any, formal education in the science of fire.
17 Through the process of training, investigators have been provided analysis tools in the form of
18 rules of thumb (i.e. if this, then this) that are simple to apply and are easily understood by
19 those with little scientific background. Unfortunately, these rules of thumb are the result of the
20 extrapolation of previous experience and, therefore, may not be applicable to the next fire scene,
21 because extrapolation that is not based on science can often lead to erroneous conclusions. Fire
22 protection engineers, who were gaining fundamental knowledge of physics, chemistry,
23 thermodynamics, fluid flow and heat transfer, and learning about post-fire artifacts, did not
24 interact with fire investigators, and thus many opportunities for remedial learning were lost.
25
26 The Law Enforcement Assistance Administration collected some of the myths about fire
27 investigation in a 1977 study entitled Arson and Arson Investigation: Survey and
28 Assessment.52
29
30 The arson investigators surveyed cited interpretation of burn indicators as the most common
31 method of establishing arson. Some of the burn indicators used are alligatoring, crazing of glass,
32 depth of char, lines of demarcation, sagged furniture springs and spalled concrete. The LEAA
33 report, after listing the indicators, provided the following caution:
34
35 Although burn indicators are widely used to establish the causes of fire, they have
36 received little or no scientific testing. There appears to be no published material in
37 the scientific literature to substantiate their validity.
38
39 It is recommended that a program of carefully planned scientific experiments be
40 conducted to establish the reliability of currently used burn indicators. Of

51
Although NFPA 921 was first published in 1992, it encountered stiff resistance, and training in fire investigation
did not really begin to improve significantly until the mid-1990s. Proponents of the scientific method for fire
investigations, or those who believed in alternate interpretations of low burning were often treated as heretics.
52
Boudreau, J.F., Kwan, Q.Y., Faragher, W.E., and Denault, G.C., Arson and Arson Investigation: Survey and
Assessment, National Institute of Law Enforcement and Criminal Justice, Law Enforcement Assistance
Administration, U.S. Department of Justice, October 1977.

38
 Report of the Innocence Project Arson Review Committee

1 particular importance is the discovery of any circumstances, which cause them to

2 give false indications (of, say, a fire accelerant). A primary objective of this
3 testing would be to avert the formidable repercussions of court ruling on the
4 inadmissibility of burn indicators on the grounds that their scientific validity had
5 not been established. In addition, the research might well uncover new methods of
6 value to fire and arson investigators. A handbook based on the results of the
7 testing program should be prepared for field use by arson investigators.
8
9 This well reasoned recommendation was only partially followed. Without any of the
10 recommended scientific testing, the National Bureau of Standards in 1980 released NBS
11 Handbook 134, Fire Investigation Handbook.53
12
13 Based on contributions of material from officials at the National Fire Academy (which was
14 responsible for teaching most of the public sector fire investigators in the U.S.), this Handbook
15 gave the imprimatur of the National Bureau of Standards to the indicators that the previous study
16 had stated had received little or no scientific testing. The NBS Handbook further entrenched
17 the errant mythology of arson investigation in the fire investigation community. It has taken
18 decades to undo the damage.
19
20 In both the Willingham and Willis cases, one of the myths from the NBS Handbook was
21 repeatedly cited, to wit,
22
23 Floors seldom receive damage similar to that of ceilings, even in the case of total
24 burnout, as the heat of the fire will be concentrated at the ceiling. In addition, as
25 ceiling materials are damaged and fall, these materials protect the floor below. If,
26 on the other hand, a large area of floor is extensively damaged, the use of
27 accelerants may be indicated.
28
29 The NBS Handbook communicated myths regarding crazing of glass, alligatoring, lines of
30 demarcation, and the angle of V patterns. The myths printed in the NBS Handbook were cited
31 and repeated in many other textbooks for fire investigators.
32
33 In 1985, the National Fire Protection Association Standards Council recognized the lack of
34 reliability of fire investigations, and formed the Technical Committee on Fire Investigations to
35 prepare a standard document. Unfortunately, the first edition of NFPA 921, Guide for Fire and
36 Explosion Investigations, was not published until shortly after the Willingham fire. Even if it had
37 been published, there is little chance that it would have been accepted. The fire investigation
38 community resisted this document and the principles it espoused for most of the 1990s.
39
40 Fire investigators who were trained at the National Fire Academy prior to 1995 are likely to
41 harbor a whole host of misconceptions about the proper interpretation of post-fire artifacts. Many
42 of these individuals still practice fire investigation, and many of them resent the fact that the fire
43 investigation profession is moving toward a more scientific approach and that a benchmark has

53
Brannigan, F.L., Bright, R.G., and Jason, N.H., Editors, Fire Investigation Handbook, U.S. Department of
Commerce, National Bureau of Standards, August 1980.

39
 Report of the Innocence Project Arson Review Committee

1 been established to measure their performance. Such individuals are likely to be highly critical of
2 this report.
3
4 The State of the Art in Fire Investigation Since 1992
5
6 With the introduction of NFPA 921, the fire investigation profession began a movement toward
7 the implementation of scientific principles in fire investigation. This change has been met with
8 sometimes-fierce resistance, and it is only since 2000 that the scientific method can be said to
9 have been generally accepted by the relevant community. The first serious challenge to the
10 old school of fire investigators came in 1996 in a case titled Benfield v. Michigan Millers
11 Mutual.54 In that case, a fire investigator who failed to properly document his observations was
12 excluded from testifying, and in the appeal from that exclusion, the International Association of
13 Arson Investigators (IAAI) filed an amicus curiae brief, in which they contended that fire
14 investigators should not be held to a reliability inquiry because fire investigation was less
15 scientific than the kind of scientific testing discussed in the Daubert decision of 1993. For a
16 time, fire investigators were advised by certain attorneys to avoid using the term science in
17 their testimony. Eventually, there were enough court rulings, including the Supreme Court
18 decision in Kumho v. Carmichael, to convince the majority of fire investigators that it was
19 necessary to accept the scientific method as the basis for fire investigation. Thus, in the year
20 2000, the IAAI formally endorsed the adoption of the 2001 edition of NFPA 921. Currently,
21 most fire investigators will acknowledge that NFPA 921 is an authoritative guide, and most fire
22 investigators purport to follow the scientific method, if only out of fear that they will be excluded
23 from testifying.
24
25 A modern investigator, who keeps up with developments in the field, gains the fundamental
26 knowledge required to understand compartment fire dynamics, and who follows the guidance of
27 NFPA 921 is more likely to reach a technically valid determination of the origin and cause of a
28 fire than in the past.
29
30 Recommendations
31
32 In order to avoid miscarriages such as occurred in the Willis and Willingham cases, first and
33 foremost, individuals conducting investigations of fire incidents must be provided with
34 fundamental scientific knowledge of the physics and chemistry of fire as a prerequisite for the
35 practical application of fire dynamics within the context of the Scientific Method.
36
37 The significant lack of understanding of the behavior of fire, as evidenced by the expert opinions
38 in the Willingham and Willis cases, can and does result in significant misinterpretations of fire
39 evidence, unreliable determinations, and serious miscarriages of justice with respect to the crime
40 of arson. Continuous (and in some cases, remedial) education and professional development of
41 fire investigators is required. There is a wealth of published fire research that routinely goes
42 unused in the analysis of fires. One of the benefits of fundamental scientific knowledge is that it
43 allows investigators to continue gaining knowledge throughout their careers through the
44 understanding and the practical application of the available scientific literature on fire behavior.
45 A scientific background will improve the quality of fire investigations, allow a greater number
54
Michigan Millers Mutual Insurance Company v. Janelle R. Benfield, 140 F.3d 915 (11th Circuit 1998).

40
 Report of the Innocence Project Arson Review Committee

1 of individuals in the fire investigation community to contribute to the available scientific

2 literature, provide better quality educational programs that will advance the profession, and help
3 investigators self-police through quality control. Furthermore, there should be an initial and on-
4 going technical review of the methods and curriculum being used as instructional materials for
5 fire investigators, on a local and state level as well as nationally to insure that scientifically based
6 information is being widely disseminated.
7
8 Some changes in the interaction between fire investigators and the criminal justice system are in
9 order. As stated earlier in this report, if a fire is miscalled as incendiary, there is frequently only
10 one viable suspect. Criminal defense attorneys, who are accustomed to focusing on the identity
11 of the perpetrator, are generally unaccustomed to discussing whether or not a crime has, in fact,
12 been committed, and are generally not trained to distinguish between a correct arson
13 determination and an incorrect one. Frequently, counsel simply accepts the assertion that a fire
14 was incendiary, when the evidence might not support that assertion. Education of defense
15 counsel is, therefore, critical. Even more critical, however, is the education of prosecuting
16 attorneys. It is they who decide whether to bring an arson case forward in the first place. They
17 need to exercise appropriate skepticism when presented with an arson determination that was not
18 arrived at using accepted scientific methodology as set forth in NFPA 921. When a fire
19 investigator opines, as all of the States experts did in Willis and Willingham, that irregular
20 patterns on a floor were caused by the application of an ignitable liquid, there should be
21 laboratory confirmation of that opinion. Laboratory testing today is much more sensitive than it
22 was in the 1970s and 1980s, when false negatives were common. Using sensitive methodology
23 developed by the Bureau of Alcohol, Tobacco and Firearms in the 1980s, fire debris analysis
24 laboratories can routinely detect less than one microliter of ignitable liquid residue in a kilogram
25 of fire debris. In fact, most laboratories can easily detect 1/10 of a microliter, or 1/500 of a drop.
26 The possibility that a building was doused with sufficient ignitable liquid to cause large pour
27 patterns and then all of that ignitable liquid was consumed to a level below the detection limit
28 of todays laboratories is indeed a remote one.
29
30 Even with a positive laboratory report, however, there must be a logical connection between the
31 burning and the alleged ignitable liquid. Because of the extreme sensitivity of todays
32 laboratories, background petroleum products, such as those from insecticides or furniture polish
33 applications, credit card slips, adhesives in shoes, and petroleum products in building materials,
34 may be detected and misinterpreted as foreign ignitable liquid residues, when, in fact, those
35 residues are naturally occurring.
36
37 Because of the increasingly scientific approach to fire investigations, and because scientific
38 evidence is held in such high regard by juries, defendants in arson cases should be afforded the
39 opportunity to retain an independent fire investigation expert to evaluate the States experts fire
40 analysis. Without expert assistance, defense counsel is unlikely to be in a position to render
41 effective assistance to his client.
42
43 Alternatively, the court could appoint a fire expert as a special master to advise the court on the
44 validity of the States fire cause determination. This alternative is rarely used. Although other
45 scientific endeavors have encouraged the judiciary to equip itself with a source of knowledge,
46 the trier of fact in arson cases apparently is content with allowing almost any self-professed fire

41
 Report of the Innocence Project Arson Review Committee

1 expert to testify and the fire investigation community apparently sees no reason to change this
2 practice. The lack of recognition of inept fire experts by the courts and the lack of self policing
3 by the fire investigation community may be the most formidable obstacle to improvement in the
4 prosecution of arson cases.
5
6 There is no crime other than homicide by arson for which a person can be sent to death row
7 based on the unsupported opinion of someone who received all of his training on the job. All
8 that is necessary for a conviction is that the jury accepts that opinion. If an incompetent witness
9 renders a false opinion in a confident manner, how is a jury to know? The false convictions in
10 the Willis and Willingham cases illustrate the danger of the current situation. These two
11 individuals were convicted on nearly identical evidence. It is likely that the only reason Mr.
12 Willis is still breathing is that he had better access to the effective assistance of counsel. The
13 State should seriously consider reviewing similar cases, i.e., where people have been sent to
14 prison for intentionally lighting fires based solely on the opinion of a State Fire Marshal or other
15 investigator, with no supporting laboratory analysis. There are likely other individuals in prison
16 in Texas and elsewhere falsely accused and convicted using invalid indicators.
17
18 Finally, the justice system should recognize that just because a person has been incarcerated
19 based on bad science, that is no reason to keep them incarcerated. New knowledge, or the belated
20 acceptance of old knowledge, should be acknowledged for what is: newly discovered
21 evidence. If an investigator is willing to admit that a citizen was convicted based on bad
22 science, then the only civilized course of action is to reopen the investigation. It was resistance to
23 this concept that allowed the state to execute Mr. Willingham, even though it was known that the
24 evidence used to convict him was invalid. When interviewed by the Chicago Tribune about the
25 Willingham case, Mr. Cheever (who was involved in the case but did not testify) acknowledged
26 the validity of published criticism of the conviction. He stated, At the time of the Corsicana fire,
27 we were still testifying to things that aren't accurate today, They were true then, but they aren't
28 now. Hurst, 55, was pretty much right on. ... We know now not to make those same
29 assumptions.56
30
31 Actually, the behavior of fire is no different in 2006 than it was in 1986, so Mr. Cheevers
32 statement that They were true then, but they arent now is very far wide of the mark. The laws
33 of physics did not change between 1986 and 2006. What is false today was false in 1986 and
34 1992. The fact that some poorly trained fire marshal believed it does not make it any more true,
35 although it may make the fire marshal feel better about his errors.
36
37 The justice system has no right to take such a feel good approach to miscarriages of justice.
38 Inevitably, when a convict like Ernest Ray Willis is exonerated, someone remarks, See? The
39 system worked! Even by that low standard, the system failed to work for Cameron Todd
40 Willingham.
41
42 To the extent that there are still investigators in Texas and elsewhere, who interpret low burning,
43 irregular fire patterns and collapsed furniture springs as indicators of incendiary fires, there will

55
A reference to Dr. Gerald Hurst, who reviewed both the Willis case at the request of the State of Texas, and who
also reviewed the Willingham case at the request of Mr. Willinghams appellate counsel.
56
Mills, S., and Possley, M., Texas Man Executed on Disproved Forensics, Chicago Tribune, December 9, 2004.

42
 Report of the Innocence Project Arson Review Committee

1 continue to be serious miscarriages of justice. The authors sincerely hope that this report will
2 help to undo similar miscarriages, and help prevent future ones from occurring.
3
4
5
6
7
8
9 The Authors
10
11 John J. Lentini is a certified fire investigator and chemist with 32 years experience in forensic
12 science and fire investigation. Since 1978, he has managed the fire investigation division of
13 Applied Technical Services, Inc., an independent consulting firm in Marietta, Georgia.
14
15 Mr. Lentini has personally investigated more than 2,000 fire scenes, and has been accepted as an
16 expert witness on more than 200 occasions. He is the immediate past chairman of ASTM
17 Committee E30 on Forensic Sciences. Since 1996, he has been a member of the National Fire
18 Protection Association (NFPA) Technical Committee on Fire Investigations, where he represents
19 ASTM Committee E30. His textbook, Scientific Protocols for Fire Investigation, was published
20 by CRC Press in January 2006. Mr. Lentinis resume can be downloaded at www.atslab.com.
21
22 Daniel L. Churchward has been investigating fires since 1972 as a sheriffs deputy, fire fighter,
23 insurance company Special Investigations Unit member, and privately employed forensic
24 engineer. He is a graduate of Purdue University with a B.S. in Electrical Engineering
25 Technology.
26
27 Since 1995, he has been the owner and president of Kodiak Enterprises, Inc. He is a charter
28 member and the current Chairman of the NFPA Technical Committee on Fire Investigations
29 responsible for NFPA 921, Guide for Fire and Explosion Investigations. Mr. Churchward has
30 qualified as an expert in fire investigation in both state and federal courts and has served as an
31 expert for the court as well. He has investigated approximately 2500 fires in his 34 years as a fire
32 investigator. Mr. Churchwards resume can be downloaded at www.kodiakconsulting.com.
33
34 David M. Smith is a certified fire investigator with over 35 years of experience. He began his
35 career in law enforcement in 1968 and served as a bomb technician and arson/homicide
36 detective. Since 1981 he has owned and managed Associated Fire Consultants, Inc., a private
37 firm specializing in fire and explosion investigations in Tucson, Arizona.
38
39 Mr. Smith has been accepted as an expert witness numerous times throughout the United States
40 and Canada and actively lectures regarding fire investigation matters in Australia, New Zealand,
41 the United Kingdom and the United States. He is a past-president of the International
42 Association of Arson Investigators (IAAI) and has represented the International Fire Service
43 Training Association as a Principal member of the NFPA Technical Committee on Fire
44 Investigations since 1992. Mr. Smiths resume can be downloaded at www.assocfire.com.
45

43
 Report of the Innocence Project Arson Review Committee

1 Douglas J. Carpenter has been investigating fires since 1996 as a fire protection engineer. He
2 holds an A.S. in Mechanical Engineering from Vermont Technical College, a B.S. in Mechanical
3 Engineering from the University of Vermont with and an M.S. in Fire Protection Engineering.
4 from Worcester Polytechnic Institute. He is a registered Professional Engineer (P.E.) in the State
5 of Maryland and a Certified Fire and Explosion Investigator.
6
7 Since 1998, he has been vice president and principal engineer with Combustion Science &
8 Engineering, Inc., an independent consulting firm in Columbia, MD. He is an alternate member
9 of the NFPA Technical Committee on Fire Investigations responsible for NFPA 921, Guide for
10 Fire and Explosion Investigations. Mr. Carpenter has qualified as an expert in the areas of fire
11 origin and cause investigation, fire dynamics, fire reconstruction, and computer fire modeling, in
12 both state and federal courts. He has numerous publications in the areas of fire protection
13 engineering and fire investigations, and has developed and frequently teaches courses for the
14 Society of Fire Protection Engineering and other professional organizations. Mr. Carpenters
15 resume can be downloaded at www.csefire.com.
16
17 Michael A. McKenzie is a trial attorney licensed to practice law in the State of Georgia. He
18 received his J.D. from the Mercer University Walter F. George School of Law in 1977. He has
19 coordinated the investigation of fires for clients since 1979 and has tried to verdict approximately
20 35 alleged arson cases. He provided the fire litigation expertise for the defense in the case of
21 Georgia v. Weldon Wayne Carr.
22
23 Mr. McKenzie practices with the firm of Cozen OConnor in Atlanta, Georgia. He has lectured
24 frequently on topics involving arson and fraud throughout his 29 years of law practice. Mr.
25 McKenzies resume can be downloaded at www.cozen.com.

44
 Analysis of the Fire Investigation
Methods and Procedures Used in the
Criminal Arson Cases Against
Ernest Ray Willis and Cameron Todd Willingham

Prepared by

Craig L. Beyler, Ph.D. Technical Director

Hughes Associates, Inc.
3610 Commerce Drive, Suite 817
Baltimore, MD 21227
Ph. (410) 737-8677
Fax (410) 737-8688
www.haifire.com

Submitted to

Texas Forensic Science Commission

Sam Houston State University
College of Criminal Justice
Box 2296
816 17th Street
Huntsville, Texas 77341-2296

17 August 2009
 Analysis of the Fire Investigation
Methods and Procedures Used in the
Criminal Arson Cases against
Ernest Ray Willis and Cameron Todd Willingham

This report evaluates the fire investigation methods and procedures employed by fire
investigators in the criminal arson cases against Ernest Ray Willis and Cameron Todd Willingham.
The goal of the report is to evaluate the fire investigations as documented by the fire investigators in
the form of reports and their trial testimony. The objective is to assess the methods and procedures
with respect to the contemporaneous fire investigation standard of care and the contemporaneous
knowledge in fire safety science. In addition, this report assesses the methods and procedures with
respect to the current fire investigation standard of care and the current state of knowledge in fire
safety science.

The Willis fire occurred in Iraan, Texas, on June 11, 1986, and the Willingham fire occurred in
Corsicana, Texas on December 23, 1991. On October 6, 2004 Mr. Willis was released from prison
and on February 17, 2004 Cameron Todd Willingham was executed by lethal injection.

STATE OF THE ART

The current standard of care in fire investigation is expressed by NFPA 921, Guide for Fire and
Explosion Investigations, published by the National Fire Protection Association (NFPA). Work on
this document was begun in the mid 1980s, but formal publication did not occur until 1992. Even
after the initial publication date, there was a natural period of time before it had fully achieved the
status of the standard of care. By 1995 when the second edition was published, the status of 921 as
a standard of care was well established, but not yet universally acknowledged. NFPA 921 provides
a core methodology, methods for planning and conducting the investigation, and methods for
collecting, interpreting, and documenting evidence. Most modern fire investigations texts mirror or
amplify upon NFPA 921 (e.g., Icove and DeHaan (2004), DeHaan (2002), Lentini (2006)).

The core of the 921 methodology is the application of the scientific method to fire investigation.
In the context of fire investigation this involves the collection of data, the formulation of hypotheses

1
from the data, and testing of the hypotheses. Conclusions can only be drawn when only a single
hypothesis survives the testing process. None of the investigators employed this methodology.
Indeed, in no case was any methodology identified. The testifying investigators admitted on the
stand that there were possible alternate hypotheses that were consistent with the facts of the case. In
no instance did this cause the testifying investigator to alter his opinions in the least. The overall
standard that seems to be in use by the investigator is that his professional opinion with regard to
cause was simply the explanation of the case facts that the investigator was personally most
comfortable with. Of course this provides no basis for finding reproducible and defensible
conclusions, an absolute requirement for rational use of fire investigation in the criminal justice
system.

In testing hypotheses, the basis for evaluation is consistency with the case facts and consistency
with our knowledge of fire science. A significant function of NFPA 921 has been the evaluation of
methods and indicators historically used by fire investigators. NFPA 921 has sought to identify
scientifically defensible methods and indicators, and provide suitable limitation to the use of these
methods and indicators. Finally, NFPA 921 provides an educational resource to investigators in
modern fire science in a manner that can be understood and applied by the fire investigation
community.

Prior to NFPA 921 there was no single document that described the standard of care in fire
investigation. For purposes of this analysis the standard of care before NFPA 921 was taken from
fire investigation texts that were published before NFPA 921 was published in 1992 as well as from
the articles published in The Fire and Arson Investigator in the 1980s. Because there are many
sources that contribute to the definition of the standard of care, the standard is less clear and well
defined than in the post-921 period. It is also important to distinguish the community standard of
care from the norms as practiced in the field. In many instances the norms are well below the
standard of care. That is fire investigation as actually practiced fell well short of the teachings of
texts, courses, and articles of the day.

During the 1980s, fire investigation was in the early stages of maturation and change. The
literature reflects some use of and impact of fire science, though the tradition of fire investigation as

2
an art based solely upon personal experience and the associated folklore was certainly still in place.
The greatest impacts of science on fire investigation were in analytical chemistry and actual fire
science was only beginning to be used. The status of fire science influence varied among different
texts and within texts.

The status of fire science in the 1980s was sufficiently developed that its limitation did not pose
problems for fire investigators. Much of the knowledge is older than most acknowledge and is
chronicled in a history text (Richardson 2003). The knowledge of fire dynamics was strong and
described in textbooks like Lie (1972) and Drysdale (1985). Thermal decomposition knowledge of
the day is well described by Cullis and Hirschler (1981). Many aspects of fire science were in
textbooks intended for college classes in fire service degree programs like Tuve (1975) and
Friedman (1989). There was excellent information available about furniture fires in the monograph
by Babrauskas and Krasney (1985) and later followed up by Krasney, Parker, and Babrauskas
(2001). The fire science basis for fire protection engineering was reduced to handbook form in the
late 1980s (SFPE 1988).

While fire science was beginning to have an influence, it must be said that the tradition of fire
investigation as an art based upon experience and folklore remained dominant. Before NFPA 921,
fire investigations texts did not include discussion of an overall methodology. The explicit notion of
formulating and testing hypotheses was generally a foreign notion in the fire investigation
community. Consequently, there was no rigor in the means of reaching conclusions from the data
and its interpretation. Opinions were generally based upon the investigators personal judgment,
based on the information available and in the light of his experience. While never explicitly stated,
certainty in opinions did not need to be any better than more likely than not. This, of course, is
well below the beyond a reasonable doubt standards that juries are instructed to employ. This
should be viewed in the light of the low reliability of fire indicator evaluation possible at the time
based on the very limited fire science impact. Together these created great potential for juries to
treat fire investigators opinions as being more reliable than they actually were, based upon the fire
investigation upon which the opinions were to have been based.

3
 The overall methodology in arson cases, as practiced in the 1980s, is the process of elimination.
This approach is generally adopted in fire investigation texts. Specific examples include Kennedy
(1977, 1985), DeHaan (1983, 1991), Roblee and McKechnie (1981), Bates (1975), Cardoulis
(1990), Patten and Russell (1986) and Carroll (1979). The process of elimination requires that all
other causes be eliminated except the determined cause. In particular, if a fire is to be determined to
be arson, then all accidental and natural causes must be eliminated. A cause would be eliminated if
it was inconsistent with known case facts or was not physically possible. An undetermined cause
would result if more than one candidate cause could not be eliminated. This method is also
consistent with the idea that all fires should be presumed to be accidental (Carroll (1979), Bates
(1975), Kirk (1969)). A finding of arson would require that the evidence show that this presumption
is not consistent with the facts.

Hobson (1992) characterized the situation as follows: Up to now, most fire investigators have
been taught to look for results, not to determine reasons. This is based on rote memory of indicators
with little or no understanding of why or how they were formed and what they can actually mean.

One means of assessing the standard of care in fire investigation is to examine the teaching
materials of the National Fire Academy, the focus of fire service training in the US. Teaching
resources such as National Fire Academy (1988), National Fire Academy (1992), and National Fire
Academy (1996) make use of the various editions of Kirks Fire Investigation by DeHaan with little
additional materials in the area of scene examination. In the post-921 era, NFPA 921 is also
included as a course reference. National Fire Academy (1983) does not make use of Kirks, but the
content is similar to materials reviewed below.

Common characteristics of incendiary fires have been summarized as: 1.) multiple origins,
2.) point of origin where there is no rational ignition potential, 3.) accelerant used as indicated by
smell, pour patterns, chemical analysis, or dogs, 4.) presence of trailers, 5.) deliberately arranged
fire load, 6.) missing personal items, 7.) extra items of contents added to fire load, 8.) unusually fast
consuming fire and a very high burning temperature in areas where the fire load is to all respects
very ordinary. 9.) tampering with FP devices, 10.unnatural fire pattern, 11.) timers or incendiary
devices found, 12.) tampering with HVAC equipment to enhance fire spread, 13.) tampering with

4
utility systems to start fires. (Noon (1995)). These are generally agreed upon as indicators, but the
difficulties come in applying them and recognizing their limitations. Many myths have grown up
that have no scientific basis. Some of these are addressed here and Lentini (2006) deals with such
myths directly. The following discussion of the understanding of specific fire indicators is intended
to include the indicators that investigators made use of in the cases included in this analysis. It is in
no sense a comprehensive list of indicators nor is the discussion of any individual indicator in any
sense exhaustive. The goal of the discussion is to understand the use and validity of these indicators
in the fire investigation community and how that understanding has evolved from the 1980s to the
present. For purposes of analysis, the understanding of fire indicators is separated into two general
time periods; post-921 and pre-921. The post-921 period includes 1992 to the present and does not
attempt to deal with the evolution of NFPA 921 during the period. The standard of care in the post-
921 period is sometimes described as the current or modern understanding of fire indicators. The
pre-921 includes the general period 19801992 and the standard of care in that period is often
described as the contemporaneous understanding of fire indicators. The term contemporaneous is
used to denote that it is the standard of care at the time of the initial investigations of the Willis and
Willingham fires. Of course, both the Willis and Willingham cases were only finalized in 2004, so
that both the current and contemporaneous periods are relevant.

V-Patterns
The general notion that V-patterns are formed by fires against wall surfaces is widely accepted
and consistent with our knowledge of fire science. However, there are myths that the width of the
V-pattern is a direct indicator of the rapidity of fire growth (Cardoulis (1990), Brannigan, Bright,
and Jason (1980)). NFPA 921 recognizes that the width of the pattern is dependent on many
variables such that simple conclusions are difficult. The presence of a V-pattern is indicative of
burning occurring at the base of the V which in some instances may be the origin of the fire. The
general trend over time is that the V was first recognized as likely the origin of the fire but may be
caused by secondary ignitions to the simple current view that it simply indicates burning at the base
of the V at some time in the fire. Low V-patterns are favored as origins due to the general tendency
of fire to spread primarily upward.

5
 Floor Patterns
Floor pattern analysis was the primary method used to substantiate that the fire was arson in
these cases. At this time, the fire science and fire investigation communities are clear that floor
patterns cannot be reliably used as an arson indicator in fully developed fires. The full scale fire test
series reported by Shanley (1997) is the primary evidence used to substantiate that the fully
developed fire and the associated radiation creates floor patterns and destroys preexisting pour
patterns. This study was designed specifically to develop an improved understanding of fire
patterns. In the fire science community it has long been recognized that the temperatures and
radiation associated with fully developed fires is sufficient to ignite floor covering (Lie (1972),
Blackshear (1974), Fang (1981)). Tu and Davis (1976) showed that carpeting did not play a
significant role in pre-flashover fires. In some sense one can say that arsons using accelerants that
are unsuccessful in creating a fully developed fire may have patterns that persist after the fire. This
has been shown by Wolfe et.al. (2009).

Studies of spill fires have given insights into the patterns formed and the quantity of liquid
required to create the patterns. Putorti (2001) studied spill fires on hard surfaces and carpets
specifically to investigate these fires in the context of arson. Gottuk and White (2008) summarize
the wider literature on spill fires, which of course are also of interest in the context of accident
scenarios as well. The spill area per unit volume of liquid fuel is given by Gottuk and White as
57 square feet per gallon. In a normal room of 100200 square feet, this requires 24 gallons to
cover a hard surface, corresponding to a liquid depth of about 0.7 mm. For carpeted surfaces,
Putorti found coverage areas of about 612 square feet per gallon. For both hard and carpeted
surfaces, lower application rates are possible if the fuel is splashed around rather than simply
poured. For context, a typical accelerant has a density of about 6 pounds per gallon and its heat of
combustion is similar to plastics. A normal residential fuel load density is about 5 pounds per
square foot so the actual energy contribution of even a massive accelerant application is very low
compared to the typical fuel load of the room in which it is used. Its hazard is in its ease of ignition
and fire spread, not its total energy contribution.

Modern fire investigation resources like NFPA 921 are now in line with the fire science
community. NFPA 921 acknowledges that floor patterns are created by fully developed fires and

6
that signatures, like burning cracks and vinyl tile edge curling, can occur in the absence of
accelerants due to radiant heating. NFPA 921 suggests that if an accelerant is suspected, then
samples for laboratory analysis should be taken. Suggestions of accelerant use can include the
patterns, smell, portable gas detector results, or canine identifications. The former methods are field
methods that guide sample collection. Laboratory analysis is the method to determine if there is
accelerant present and its identity. Melting plastics can create patterns that look like liquid spills.

The earlier views of floor patterns in the fire investigator community are both different from the
fire science community and quite diverse. However, most urge caution in the identification of
accelerant use solely based upon visual examination.

Cardoulis (1990) offers while the inkblot, puddle and flow pattern left by a spilled liquid
accelerant is very distinctive, fire investigators must be careful not to confuse it with a very similar
pattern caused by the fire itself and heat itself. He further offers that the center of a burn
configuration involving a flammable liquid puddle may exhibit no char at all because the fuel was
consumed before reaching this point. An example of a clean puddle pattern can be seen in tests
conducted by Mealy and Gottuk (2006).

Hobson (1992) had a very modern view of floor patterns. One of the more common burn
patterns and one which is most often misinterpreted is the floor burn pattern. If one were to do a
little study of the statistics that have been derived from many of the tests conducted, you will find
that in 99 percent of the fires involving flashover there will be serious floor burn patterns. Far too
many fire investigators, specifically those still involved in the old firemens tales school of thought,
immediately, on seeing the floor burn pattern, conjure up the fact that it is a pour pattern resulting
from a liquid accelerant. He does offer that there are no fingers in burn pattern with innocent floor
patterns and that fingers are characteristic of ignitable liquids. Hobson (1992) notes that ignitable
liquid protects the floor so damage occurs at the edge of the pour and moves inward only as pour
area reduces. He also recognizes that burning foam rubber yields a melt that gives patterns like
ignitable liquids, though foam burns tend to yield more uniform patterns than ignitable liquid can
display. He observes that asphalt tiles or vinyl tiles may reveal irregular patterns and discoloration

7
and blister in the absence of liquids due to the fire environment. He also points out that wood and
carpet floors can show patterns in normal fire that result from wear patterns.

DeHaan (1983) suggests that patterns on floors may be apparent and not related to the origin of
the fire. At the same time he offers that any area which has a floor burned or a wall burned right
down to the floor should be considered suspicious and deserving of further investigation. Such a
burn does not mean by itself that the fire is incendiary in origin. It means only that the fuel load and
the configuration of the fire environment were such that high temperatures were being produced at
the floor level. Something normal to the room may have caused it to burn in this fashion. With
regard to Ghost Marks, DeHaan offers Depending on the fire conditions and the nature of the
floor tile, it has been observed in experimental room fires that the tile will shrink, exposing the floor
to higher general temperatures and producing very similar effects; so it should not be considered
absolute proof of the presence of a flammable liquid, but it is certainly a very strong indicator of
such an accelerant.

DeHaan (1983) has an interesting perspective with regard to ultimate opinions by the
investigator. In the final analysis it is always the experience of the investigator that determines
what importance is to be made of such patterns. The prudent investigator, when all indications are
that a flammable liquid has been used, will recover samples of the flooring and nearby debris for
laboratory testing no matter what odors are present. Thus, while DeHaan is very cautious about
visually observable patterns, he still is in some sense willing to ultimately rely on the experience
(read judgment) of the investigator. In 1983 he is cautious and encouraging of the use of science,
but he has not yet abandoned the experientially based model of fire investigation.

DeHaan (1987) discussed that floor charring can occur due to radiant heat in normal fire or due
to normal fuels on floor or due to drop down (including draperies and melting plastics). He
identifies that intense local burn patterns on the floor can be created without ignitable liquids.

Bates (1975) acknowledges that low burn under furniture could indicate an accelerant, but that
drop down can create patterns on floor. As such an inventory of items in the room is essential.
Hobson (1992) talks about foam rubber furniture giving intense burning and heavy char on the floor

8
and melting onto the floor. Noon (1995) indicates that pour patterns may not be from a liquid pour,
but may be secondary due to existing liquids or fall down burning.

Phillipps and McFadden (1986) recognized that ignitable liquids protect the floor while the
liquid is present so that heat damage occurs at the edge of the existing spill area. More central
damage occurs as the spill recedes. They state that flows of ignitable liquids under doors create
patterns on bottom edge of door that ordinary combustibles cannot. This is inconsistent with our
modern understanding. They also state that fire issuing from a room into another room would not
normally involve burning of flooring in the adjacent room, so that if there is a pattern in the
adjacent room it is an indicator of an ignitable liquid pour. At the same time they acknowledge that
the presence of a floor pattern does not always mean that an accelerant was used. Their general
views are somewhere between the historical myths and our modern understanding. Harmer et.al.
(1983) studied flammable liquids on linoleum floors and found that patterns of bubbling and
charring result. These tests were done without compartment effects. National Fire Academy (1983)
describes burning on bottom edges of doors as unusual in accidental fires, indicating it is not a
strong indicator of an arson fire.

Ettling (1990) studied the ability of gasoline to flow under objects in contact with the floor. He
found that gasoline did not flow under 2 x 4 lumber when gasoline was spilled around it. This
indicates that the protected area not including residue of the accelerant does not mean that it was
not present in the area. This was an investigation taken on by a single investigator no doubt in
response to an issue in a case. In the 1980s and before there was little direct funding of fire
investigation research and this type of contribution represents all that was being done.

The role of plastics in fire was evolving in the 1970s, though by 1980 plastics were widely used
in furniture and furnishings (Zicherman and Allard (1989)). Part of the confusion about the
potential role of plastic melts arises out of lack of fire science input to fire investigation and part of
it results from a slow response to the changing character of materials in use, moving away from
cellulosics to plastics. Fire (1985) recognized that plastic melt patterns look like ignitable liquid
patterns, and called out polyethylene in particular. Roberts (1982) focused on splatter and trailer
patterns associated with ignitable liquids. His discussions reflect views associated with cellulose

9
dominated fires, but shows some appreciates of polyurethane foam (in furniture and beds) and
asphalt.

Stickevers (1982) identified that char depths are greater at outer edge of a spill due to recession
during burning. He noted that falling drapery, foam rubber padding, and air flows can cause
patterns that have nothing to do with accelerants. He also noted that the depth of a gasoline spill is
about inch and the duration of burning is about 40 seconds. This is generally consistent with
more formal research by Putorti (2001) and reviewed by Gottuk and White (2008) conducted many
years later. At the same time Stickevers asserted that uniform damage with height is not normal and
indicates the use of a flammable liquid and that spalling is an indicator for flammable liquids.
Neither of these is consistent with our current understanding.

Almirall and Furton (2004) indicated that thermal damage or a burn pattern on a combustible
floor can be the result of ventilation, radiant energy from a nearby flame, radiation from hot gases,
dropping or falling materials that burn on the floor, or the burning of an ignitable liquid. This
comports with NFPA 921.

Overall, the 1980s views of floor patterns were in transition from the experiential based rules
to the modern science based understanding. There were many cautions available to discourage the
reliance of investigators on floor patterns to indicate accelerant use. An astute investigator could
have recognized that the volume of liquid required to explain room size patterns is beyond what is
most often reasonable and available. Clearly, there was ample guidance to take and analyze samples
to identify accelerants and many warnings about the potential for error in the absence of laboratory
analysis. Nonetheless, it was clearly the case that investigators in these cases did not understand the
importance of having more than visual evidence of accelerant use and were satisfied to base their
opinions almost solely upon this and other equally unreliable indicators.

Crazed Glass
NFPA 921 does not accept crazed glass as an indicator of the use of an accelerant. Cardoulis
(1990) and DeHaan (1983) indicate that crazed glass indicates rapid heat buildup, but do not
uniquely associate this with arson scenarios. Roblee and McKechnie (1981) identify that crazing
can occur due to hose stream application to hot glass, as may well have occurred in these fires,

10
given the stage of the fire on fire department arrival. Phillipps and McFadden (1986) indicate that
large crack areas on glass indicate a slow growth fire, while small crack areas indicate a fast
growing fire. Fire science research has not found a basis for these rate dependent crack areas or
the crazing argument (Pagni (2003), DeCicco (2002)), though crack initiation temperatures have
been identified and additional cracking occurs with additional temperature increases.

Spalling
NFPA 921 does not accept spalling as an ignitable liquid fire indicator. While high heating rates
are associated with spalling, this is in no way uniquely tied to arson fire. Cardoulis (1990) indicates
that spalling may be an indicator of rapid heat buildup and as such could indicate the presence of a
flammable liquid. Brannigan, Bright, and Jason (1980) discuss that spalling indicates an intense
fire, though no direct link with arson is suggested. Canfield (1984) reported testing of small
concrete floor samples exposed to accelerant fires which did not result in spalling. Smith (1981)
indicates that spalling can occur with ordinary fuels, but does not occur with ignitable liquids. He
indicates that spalling is not a good arson indicator. Lentini (1982) criticized the above small scale
testing and documentation and provided evidence that a floor in an arson fire had spalled. Notably,
Lentini cited Lie (1972) an early fire science text not widely read in fire investigation circles.
Clearly, even in the 1980s, there was no clear indication that spalling was a good arson indicator.

Low Burn
Cardoulis (1990) indicates that low burn patterns may be an indicator of accelerant or may be
the result of drop down burning. Brannigan, Bright, and Jason (1980) discuss the role of layer
radiation in igniting objects and carpeting, thus refuting low burn as an indicator of accelerant use.
Hobson (1992) identifies that in fully developed fires, high temperatures can exist low in the
compartment and as such create low burn patterns. Roblee and McKechnie (1981) and Carroll
(1979) state that low burn indicates the origin, but caution about drop down burning. Roblee and
McKechnie (1981) indicate that burning ignitable liquids on flat surfaces forms an ink-like blob
outline and that burning along the wall down to the floor level and under the edge of molding is
characteristic of ignitable liquid fires. They indicate that Class A (normal fuels) materials tend to
burn above the floor level and are rarely fully consumed without an accelerant. The notion that low
burn on walls is a good indicator of ignitable liquids is not accepted by NFPA 921, or the fire

11
science literature. The notion ignores the role of radiation heat transfer in fire. The notion that
ordinary combustibles do not burn completely is wholly without merit, based upon the fire science
literature regarding fully developed fires.

Burn Intensity
The idea that the intensity or temperature of the fire is an indicator of accelerant use is not
accepted by NFPA 921 or the fire science literature. Flame temperatures for normal vs liquid fuels
are very similar, and compartment temperatures cannot be used to distinguish if ordinary or liquid
fuels are involved. Roblee and McKechnie (1981) indicate that severe burning in a corner of a room
or along a wall can indicate the possibility of an accelerant. This is in direct contradiction of the
modern fire science understanding that radiation enhances burning intensity in corners and at walls.

Bates (1975) states that the intensity of heat generated by the fire may indicate that some
additional fuel has been added to the normal contents of the area. This suggests that foreign fuels
such as liquids can intensify the fire, but he makes no direct claim that liquids create temperatures
not obtainable by normal fuels. However, tests by Mealy and Gottuk (2006) have shown that the
exponential fire growth from both class A and accelerant ignition scenarios of sofas were similar
with the difference being in the initial development stage before exponential growth. Noon (1995)
does indicate that flammable liquids burn at higher temperatures than ordinary flammable contents,
and have higher heat release rates. The former is untrue, while the latter is most often correct. He
also suggests that flammable liquids on a wood floor would yield higher char rates on floor than
ordinary char rates experienced elsewhere on the same flooring. This is not consistent with our fire
science understanding.

Ventilation Effects
NFPA 921 and the fire science literature are very clear on the role of ventilation influences on
burning and the resulting patterns. Shanley (1997) showed clear evidence of this effect and
documents that enhanced burning occurs proximate to the vent. A number of earlier works indicate
the role of ventilation, burning, and patterns. Cardoulis (1990) states that ventilation influences
burning, and that fire will normally burn in the direction from which it is receiving oxygen. Casto

12
and Wright (1984) recognized the role of ventilation in pattern generation. Overall, however, the
1980s literature did not often describe ventilation effects on burn pattern formation.

Floor Sampling
Needless to say, NFPA 921 and modern fire debris analysis books (Stauffer et al (2008)) are not
supporters of the wash the floor with a fire hose and then collect samples school of thought.
NFPA 921 treats all field based accelerant methods as means of identifying samples for laboratory
analysis. Cardoulis (1990) suggests that samples for analysis must be taken before the floor is
washed with water and points out the potential for normally occurring petroleum products or
pyrolysis products being confused with an accelerant. DeHaan (1983) indicates that successful
cases have been prosecuted without any conclusive laboratory results for incendiary materials. Four
years later DeHaan, J. (1987) strongly encourages laboratory analysis for accelerant residues. Gohar
(1983) reported on room testing with hard wood flooring with nylon carpet and jute backing that
indicates that accelerant traces will survive totally involved room fire conditions Stone and
Lomonte (1984) reported that in only 107 of 310 cases (suspicious) they found evidence of
hydrocarbon accelerants. They also point out the need for chemical analysis to avoid possible
interpretation of pyrolysis products as accelerants. In more recent work, Lentini (1998) discusses
analytical methods to avoid misinterpretation of materials, such as asphalt, as accelerants. It is fair
to say that in the 1980s, investigators widely accepted positive laboratory results for accelerants if it
was available. However, they also considered such evidence as entirely unnecessary in reaching
conclusions that a fire involved intentional use of an ignitable liquid.

Annealed Furniture Springs and Other Furniture Effects

Based upon full scale and laboratory testing, Tobin and Monson (1989) and Tobin (1990)
concluded that observation of the "collapsed" state of coiled furniture/bedding springs is not a
reliable indicator of whether a fire was initiated by a smoldering cigarette or accelerated by the
presence of a hydrocarbon. They also review the prior literature and the conflicting conclusions
found in the fire investigation literature. Tobins findings are consistent with NFPA 921.

Bates (1975) observed that smoldering couches lead to annealing of springs and rapid fires do
not. DeHaan (1983) offered that annealed springs are an indicator of smoldering if localized, but

13
that this can also be produced by external fire, or by debris falling onto furniture. Clearly he does
view it as a good indicator. Hobson (1992) opines that annealing springs occurs due to deep seated
smolder and not from flaming fires initiated on the surface of the furniture. Phillipps and McFadden
(1986) suggest that when flames travel to upholstered furniture, the damage is usually confined to
the surface material. The fire will not burn down into the padding or drop down below the furniture.
These things will occur if the furniture item is the origin. If springs retain their elasticity, then the
fire could not have started there. They regard this as quite reliable! These views are not consistent
with the modern fire investigation literature or the fire science literature.

Multiple Points of Origin

Multiple points of origin may indicate that a fire is intentionally set. However, there are means
by which multiple origins may occur accidentally and more commonly multiple apparent points of
origin may exist. In NFPA 921, such alternate means of creation of apparent points of origin
include drop down burning, radiant ignition, and embers. DeHaan (1983) points to several obvious
indicators of arson as separate multiple points of origin, the presence of trailers of flammable
liquids, paper or rags, or igniting devices. These, he says, point to incendiarism. Bates (1975) notes
that in order to develop sufficient evidence to prove that the crime of arson did occur, it is
necessary to overcome any possible accidental or providential origin of the fire. One method of
developing such evidence is by proof of the existence of separate fires. Carroll (1979) cautions
that multiple low points does not mean arson as they may occur due to fall down or spillage of
flammable liquid in the course of the fire. Gudmann and Dillon (1988) identify radiation and drop
down as causing the appearance of multiple origins. Clearly, this indicator has always been
recognized to be fraught with difficulties.

WILLIS CASE

The Willis fire occurred in Iraan, Texas, on June 11, 1986. The Iraan Fire Department received
notification of the fire at 4:44 am. Upon arrival, the front of the home was fully involved with
flames extending from windows on the front of the home and with fire involving the front porch.

At the time of the fire, the home was occupied by Billy Don Willis, Ernest Willis, Gail Jo
Allison. and Elizabeth Grace Belve. The tenants of the home, Michael Thomas Robinson and wife

14
Cheryl Lynn Robinson, had been arrested by police the evening before the fire as a result of noise
complaints by neighbors. The unarrested temporary occupants of the home were warned that if they
did not remain quiet, they too would find themselves in jail.

At the time of fire department arrival, Billy Don Willis and Ernest Willis were outside the front
of the home. Gail Jo Allison. and Elizabeth Grace Belve were still within the home and their bodies
were later found within the home.

Brown Report

A four page June 20, 1986 (nine days after the fire) report was prepared by Texas State Fire
Marshall (FM) Le Roy Brown, based upon his investigation performed with Edward Cheever, a
new Fire Marshall receiving on the job training with FM Brown. The report provides a brief
narrative of the discovery of the fire which included Ernest Willis discovering the fire, attempting
unsuccessfully to alert and rescue other occupants, leaving the home and phoning the fire
department.

The report describes the construction of the home which includes numerous incorrect
descriptions of the home. Among the significant disparities is that the wood paneling that existed in
most of the home was described as sheetrock and the cellulosic ceiling tiles were described as
sheetrock. The combustible wall and ceiling surfaces which FM Brown misidentified had a marked
effect on fire growth rates within the home.

The report concludes that there were multiple points of fire origin within the living room and
dining room. No bases for this conclusion are provided. The report further identifies that an
unidentified flammable liquid had been applied to a large portion of the living room and dining
room. The report indicates that the flammable liquid was ignited by an unknown means.

In the section entitled Involved Subjects, only Ernest Willis was identified. None of the other
occupants or tenants was identified.

FM Brown interviewed Ernest Willis who stated that he was asleep on the couch in the living
room and was awakened by smoke. Mr. Willis stated he ran through the fire in the living room and

15
the dining room to the kitchen and into the back bedroom and tried to get Elizabeth Grace Belve
out, but was overcome by smoke. Mr. Willis stated he then turned around, bypassing the back door
in the kitchen, ran through the fire in the dining room and the living room and out the front door.
Ernest Willis then advised that he went around to the side of the structure and started knocking out
windows trying to get individuals out of the residence. FM Brown also interviewed Billy Don
Willis, who stated he was in the bed with Gail Jo Allison in the southwest bedroom of the
residence, when he heard a loud popping and crackling sound. Billy Don Willis advised he got up
and opened the bedroom door to investigate. When Willis opened the bedroom door, fire and
smoke came into the room from the hallway. Mr. Willis advised that he then ran through the
bedroom, jumped on the bed and out through the window. Mr. Willis advised he then turned around
and tried to get Gail Jo Allison out, but could not because the window was too high. No mention of
the state of the occupants due to their partying was included in the report. There is no indication that
FM Brown had reviewed any hospital records or autopsies with respect to drug or alcohol levels of
occupants.

The report does not document any photography or other documentation of the scene prepared
by FM Brown on the fire scene and does not reflect any collection of samples for laboratory
analysis. The report does not reflect the fact that FM Brown was on the scene for less than a day
and that the scene had been severely altered by Deputy Sherriff Jackson and County Fire Marshall
Kenley prior to FM Brown arriving on scene.

Both Billy Don and Ernest Willis voluntarily took polygraph examinations. Based upon the
results, FM Brown concluded that Bill Don knew nothing of the fire and that Ernest Willis had
knowledge of the fire and did start the fire. No basis for this conclusion is provided in the report.

The report concludes that based upon the physical evidence at the scene, the fire was
incendiary. The nature of the physical evidence is nowhere described or provided.

This report provides conclusions about multiple fire origins, the use of flammable liquid as an
accelerant, and the party responsible for the fire and provides no bases for any of the conclusions.
As such, this report asserts conclusions based solely upon the personal judgment of the investigator.
It provides no basis for a rational review of the report, its methods, or findings. Neither the

16
scientific method nor any other methodology is employed to develop hypotheses and evaluate
identified hypotheses. There is no evidence in the report that any other potential fire causes were
considered. The report amounts to the unsubstantiated personal belief of the investigator.

Dailey Report

Insurance investigator John Dailey prepared an 18 page reported dated 24 June 1986 (13 days
after the fire). Mr. Daileys report reflects that he interviewed members of the Iraan Volunteer Fire
Department who responded to the call. These included Cynthia Green, Dina Collins, Randy
Peterson, and Robbie Dominguez. He also interviewed Deputy Sheriff Larry Jackson, who had
arrived shortly after the first arriving fire department units. Deputy Sheriff Larry Jackson also
investigated the fire directly after the fire was extinguished and found the bodies of Gail Jo Allison.
and Elizabeth Grace Belve. Apparently, it is Deputy Sheriff Larry Jackson who initially determined
that the fire was suspicious and requested the assistance of Crockett County Fire Marshall Steve
Kenley. Both Kenley and Jackson were present at the fire scene on 12 June 1986 when Dailey
arrived and no other investigators were present.

The fire department eyewitnesses describe a consistent picture of the fire scene upon arrival and
the actions taken by the fire department, though each person has their own vantage point on the
activities. Upon arrival they indicate that the front of the home was fully involved and flames were
issuing from windows and the porch gable. Breaking windows could be heard. Both Billy Don and
Ernest Willis were observed outside the home and it was quickly learned that two victims were still
inside. Both Williss had bare feet and did not suffer burns. Firefighter Dominguez described his
attempt to rescue the victims and his attempt to enter Bedroom #3. He did not observe fire in that
bedroom, though he saw flamelets at the door between Bedroom #2 and #3. On numerous
occasions Dailey reports in these narratives that the Williss were unemotional and further noted at
length the emotional upset of FF Dominguez upon realizing he had not succeeded in rescuing the
victims. Dailey portrays by his treatment of the eyewitness statements that the Williss were
uncaring or indifferent to the fates of the victims. Notably, Dailey does not report having
interviewed the Williss.

17
 In his walk around the home upon arrival on the scene, Dailey reports that no flammable liquid
containers were visible outside the home. He noted that both the front and back doors had been
burned off entirely, with severe external damage to the home in the front. The living room and
dining room had been entirely cleaned out and washed down before Dailey arrived. The remnants
of the contents of these rooms were on a pile on the front porch.

Upon examining the breaker box, all circuits were in the off position, indicating that firefighters
or investigators had turned off the breakers and no information was available if circuits had tripped
during the fire. The only furniture in the living room or dining room was the remnants of a couch
and an upholstered chair that had been replaced by investigators after the cleaning out and washing
out process. No remnants of the dining room table and chairs or a small china closet were found.

The front door of the home was entirely consumed with heavy damage to the door frame. The
door sill showed evidence of heavy burning. The ceilings of both the dining room and living room
had been penetrated by the fire and damaged the rafters above. The ceilings were sheetrock with
cellulosic ceiling tiles installed over furring strips. The walls were noted to have been wood
paneling throughout most of the home, which Dailey recognized as being significant with respect to
fire growth rates.

Dailey noted that the cleaned and washed floors showed severe and extensive flammable liquid
burn patterns which had gone through the carpeting, the foam rubber padding, the asphalt tile
covering, and into the plywood subflooring. Dailey cites no methodology for this determination and
apparently made the determination of the extensive application of flammable liquid solely on the
basis of visual patterns of damage to the cleaned floor. At that time other rooms had not been
excavated.

Dailey noted that low burning only occurred in the living room in the southeast corner where a
couch had been. He attributed this low burn pattern to pouring of flammable liquid onto the couch.
He attributed a similar fire pattern in the southeast corner of the dining room to flammable liquids
as well. In examining bedroom #3, Dailey opined that rug damage at the foot of the bed and trails
of damage toward the door leading to the kitchen were due to flammable liquid pour.

18
 Dailey took samples from the living room, dining room, kitchen and bedroom #3 for analysis
for evidence of accelerants. At the time of the writing of the report, lab results were not yet
available. Ultimately, the samples proved negative. Dailey reports that he and FM Kenley each used
his respective portable gas detector (sniffer) and found no indications of accelerant within the
home.

Dailey reported that Deputy Sheriff Jackson became suspicious of the fire based upon his initial
questioning of the Williss. It was this suspicion that caused Jackson to clean out the living room
and dining room immediately to examine the floor and of course found the severe burn patterns in
these two rooms before FM Brown arrived. On June 1314, Dailey oversaw the cleaning out of the
entire house. Once again, they washed the floors in the kitchen, dining room, and living room with
water. Dailey retained samples of the carpeting and padding from the living room/dining room and
shag carpet from bedroom #3 for future use. However, neither the report nor his trial testimony
indicates that these samples were used in the investigation.

Dailey examined the electrical outlets in the living room, dining room, and kitchen, finding no
evidence of overheating or shorting. It is presumed that any appliances plugged into these outlets
had been cleaned out with the general floor cleaning as no mention of analysis of these is presented.

Dailey cited the presence of low burn in the living room, dining room, and kitchen as consistent
with the use of flammable liquids. He further opined that the complete consumption of the sofa, the
severe burning of the easy chair, and the severe and uneven burning of a second couch further
substantiated an unnatural and set fire. He made reference to the extent of smoking of the glass
windows broken out, but drew no direct conclusion from this evidence though he did note that such
smoking could result from a hydrocarbon-based accelerant.

Dailey reported that the Pecos County Sheriff stated that Deputy Jackson was in charge of the
fire investigation. Sheriff Wilson stated that he had gone to the scene to collect the bodies of the
deceased. Sheriff Wilson notified the State Fire Marshalls Office of the fire deaths and FM Leroy
Brown arrived on the scene on June 11, 1986. Apparently, FM Brown was on the scene only on
June 11.

19
 Daileys report recounts portions of Deputy Sherriff Jacksons investigation and the events
leading up to the fire. At 9:45 pm the evening before the fire, police received a complaint about
noise at the home. The account is written using the personal pronoun, he, apparently referring to
Jackson personally. He arrived at the home and found the four guests (Billy Don Willis, Ernest
Willis, Gail Jo Allison, and Elizabeth Grace Belve) and Mr. and Mrs. Robinson, the tenants,
drinking and making noise. Mrs. Robinson had been shoving a car down the street and Sherriff
Jackson instructed them all to remain in the home and be quiet. About 3040 minutes later, a
further complaint call was received. He responded and took Mr. and Mrs. Robinson to the county
jail, warning the others to go back into the hose and not come back out or he would arrest them as
well. The police received no further calls.

Sheriff Wilson and Deputy Sheriff Jackson took the Williss to Midland Texas where they were
given polygraph examinations by the Texas Department of Public Safety regarding their knowledge
of the fire. Deputy Sheriff Jackson advised that Billy had passed the test and Ernest failed the test
badly indicating that he actually did set the fire at the home. Subsequently, Ernest continued to deny
any knowledge of the fire, sticking to his original story that he spent the night on the couch and was
awakened by smoke and fire. As a result of the polygraph results, Deputy Jackson went ahead the
next morning to hire a crew of men to completely empty and clean the home so that all of the floors
could be examined. It was at this time that the floors were seen to exhibit burn patterns from the
front to the back of the home. The patterns were interpreted to indicate that an arsonist had poured
flammable liquid from the foot of the bed in bedroom #3 through the home from the back to the
front in such away as to seal off escape from the home. These patterns were taken to make Ernests
story unbelievable, because his story included him moving to bedroom #3 in a rescue attempt. If
such an arson fire had been set, he would be expected to have injuries to the lower extremities,
especially portions of the feet.

Dailey recorded that Mr. Robinson, the tenant, informed Deputy Jackson that Robinson had left
four one-quart bottles of methanol on the front porch. Dailey reports that he and Jackson agreed that
the volatility and water soluble nature of methanol was the reason that the sniffers did not respond.
There are pictures in the file of one-quart bottles of malathion, but no bottles of methanol. It
appears that there was a miscommunication regarding the identity of the liquid. Malathion is an

20
insecticide that uses petroleum distillates as a carrier/diluent. Thus, the product is not water soluble,
is not highly volatile, and would be expected to be detectable by portable gas detectors if present.
Jackson advised that a neighbor had a bottle of methanol on his front porch which apparently
could have been used and replaced by the arsonist. This glass jar was sent to the laboratory for
fingerprint analysis. No results of the test were provided in Daileys report. Dailey and Jackson
agreed that Ernest Willis is the person that set the fire in the home that morning based upon the
above evidence and Ernest Willis story.

Michael Robinson told Dailey that Billy Willis had been staying with them temporarily and that
they had met Ernest only a few times. Mr. Robinson also reported that there was drinking beginning
in the afternoon before the fire through the time the Robinsons were arrested around 10:30 pm.
Mr. Robinson reported that Cheryl Robinson was diabetic and when she drinks she sometimes goes
crazy. This is consistent with the disturbance involving pushing cars around out of doors.

Dailey interviewed a number of neighbors about the fire. The observations of the neighbors
were consistent with the observations of the first responders interviews with respect to the fire
appearance and the Willis actions.

Dailey concluded that the origin of the fire was the foot of the bed in Bedroom #3 where a small
amount of flammable liquid had been poured along the bed. He found no evidence of a connecting
trail of flammable liquid to the kitchen, dining room and living room where large amounts of
flammable liquid had been poured. He opined that ignition occurred at the front door. He further
opined that the two couches and an easy chair had also been doused with flammable liquid. He
found no evidence of an accidental fire cause and opined that the four quarts of methanol stored
on the front porch were used in the arson. None of the bottles were found and this was attributed by
Dailey to the bottles falling down from the porch and being broken during firefighting.

Cheever Testimony

On direct examination FM Cheever indicated that he had become certified in fire investigation
in November 1985, eight months before the fire, and that he had prior experience as a policeman
and a firefighter. He indicated that he was working for FM Brown at the time, getting acclimated to

21
the territory and his new job, and that he was assisting FM Brown in the investigation. He indicated
that he supervised some of the scene clean up and instructed the cleaners to pile the salvageable
furnishings in a pile. He did not inventory any of these items.

FM Cheever provided the following list of evidentiary items that formed the basis of his
opinion: 1) low burn on the walls, burn patterns on the floor, and general burn patterns, 2) the
intensity of the damage to the ceiling of the living room and dining room, 3) the damage patterns
and severity of damage to furniture, and 4) exclusion of one electrical outlet he examined. FM
Cheever indicated that the low burn on the walls indicated that the heat source that caused the
damage was low, consistent with flammable liquids on the floor. He also indicated that damage
patterns on the floor indicated flammable liquids but had no idea how much flammable liquid
would be needed to explain the evidence. The damage to the porch indicated low burn on the porch
as well. He admitted his opinion that the fire was arson was solely based upon his own personal
observations of damage to the home during his less than one day examination. He did not rely upon
any outside sources of information nor did he rely upon the report prepared by FM Brown. He
relied solely upon his training and observations. He took no photographs, took no samples or
evidence, did not use a portable gas detector, and had no investigation notes. He was unaware of
others collecting samples and apparently felt no need to consult the results of sample testing in
formulating his opinions.

He told the jury that the damage patterns on the front of the house were indicative of the fire
source being at very low level. He opined that if the fire had started high in the home, that the
entirety of the home at that higher level would be consumed before such low level burning could be
observed. He told the jury that the heaviest damage was in the living room and dining room, and to
a lesser extent the kitchen, and that they focused on these areas as a result.

FM Cheever recounted that there was still debris on the floors of the living room and dining
room when he arrived on the scene and that later the location of furnishings was provided by Mr.
Robinson. The carpet remnants were removed with all other contents in the process of removing
debris to evaluate patterns at the lowest level. The debris removal was ordered by FM Brown and
was carried out using Deputies pressed into service. There was no evidence given that the removal

22
of the debris was done as part of the examination of evidence. Unskilled Deputies (i.e., not fire
investigators) were the bulk of the work force and detailed examination of the debris seems to not
have been the goal of the debris removal team. Cheever admitted that his investigation was limited
to the dining room and living room only.

In his testimony FM Cheever explained the concept of radiation to the jury and its role in fire.
The explanation involved item to item radiation heat transfer and gave no indication of the role of
radiation from the hot gas layer in a room. He opined that the burning of the carpet was indicative
of the use of a flammable liquid. He did not address the role in radiation from the hot gas layer to
the floor as a potential cause of carpet burning. He further opined that the charring of the door jamb
was due to flammable liquid burning and that no other fuel source could explain the damage.
During his direct testimony he did not know the material that comprised the ceiling and never
acknowledged that the walls were wood paneling. He also indicated that he did not examine the
carpet padding closely and did not know what type of material it was. While he did not know what
the ceiling material, he opined that if a ceiling tile fell down, it would fall directly down and could
not fall under furniture. Apparently, he believed that falling items are incapable of falling on their
edge and move horizontally. He opined that burn marks on the floor under the couch were the result
of flammable liquid application, apparently unaware that polyurethane creates liquid melt during
the course of a couch fire (see e.g., Wolfe et.al. 2009 for a photo).

The electrical examination was limited to one outlet that had apparently had problems
historically, the light switches, and the breaker box. No other outlets were examined and no
appliances were examined.

In examining the remains of a couch, the differential in damage from one end to the other was
taken to be indicative of the use of flammable liquid on one end of the couch and the associated
burn patterns on the floor were taken to indicate the burning of flammable liquid associated with
the couch. He opined that the pattern of floor damage from the kitchen to the front of the house was
indicative of a flammable liquid pour through the three rooms. He indicated that based upon his
understanding of the pour patterns, the couches would have been involved immediately and that
anyone on that couch at the time of ignition would have been burned.

23
 In discussing the condition of the dining room, FM Cheever noted the complete consumption of
the dining room table and chairs, which he opined was inconsistent with drop down burning. In his
testimony he alluded to the possibility of flashover in the dining room. He never explained the
concept to the jury and focused in his testimony on drop down burning as the alternative to a
flammable liquid pour.

While FM Cheever opined that there was a flammable liquid pour from the front to the rear of
the home, he had no idea the quantity of liquid that was poured and no idea what liquid was poured.
He opined that flammable liquid poured in front of a couch onto a carpet and padding could flow
under the couch despite the sponge-like nature of the carpet and pad. He seemed unaware of
wicking phenomena and the effect of carpet and padding upon burning rates. During his cross
examination, he reported arriving on scene between 1 and 3 pm. Since we know from Dailey that
FM Cheever and Brown were not on the scene the next day, the duration of the scene examination
was nominally only half a day.

Under cross examination, when posed with a hypothetical including evidence of floor to ceiling
burn patterns in one or more bedrooms; FM Cheever indicated that such burn patterns would not
have influenced his opinions. This is inconsistent with his own acknowledged methodology of
association of severe burning with the potential for early involvement. FM Cheever also associated
the angle of damage into the floor as indicative of a flammable liquid fire. While he believes this
myth of fire investigation, he did nothing to document the pattern in the form of photos or notes. In
discussing his opinions on damage to the front door jamb, he persisted in the view that the damage
was either flammable liquid or the result of drop down. He did not consider radiation from the hot
gas layer or emerging flame at the front door as a potential source of the thermal energy required to
damage the door jamb sill. On cross examination he admitted that radiation from above could
scorch or ignite carpeting or other materials, but this realization did not seem to play a role in his
formulation of opinions regarding the fire. He indicated that he had never seen a fire where
radiation from above played a role in damage to the floor. He also acknowledged that patterns on
the floor similar in appearance to flammable liquid pours could occur in the course of an accidental
fire, but provided no basis for his determination that these patterns were due to flammable liquids.

24
While FM Cheever was aware of different flammability classifications for carpet, he knew nothing
of the properties of the carpet in this home.

On redirect, FM Cheever cited that the uniform damage to the upper portions of the porch could
not have come from flames issuing from the interior of the home. The unstated assertion was that
something additional, like flammable liquids on the porch would be needed. Again on redirect, FM
Cheever asserted that damage to the floor if ignited by radiation would be different below the
dining room table. Apparently, he thought that the table burning would not have substantially the
same radiative effect as other surfaces above like the ceiling. He was also unaware that radiation to
the floor could cause irregular damage patterns.

Dailey Testimony

Mr. Dailey discussed his training and experience as a fire investigator and an FBI agent before
that. His training as a fire investigator was completed in 1983, three years before this fire. He
indicated that when he arrived at the scene, it had been significantly disturbed, including all
contents removal from the living room and dining room and subsequent water washing of the floor.
While FM Cheever spent only half a day on the scene, Dailey reported spending 2 days on scene.

Mr. Dailey discussed his interviewing, consistent with his report, and told the jury that he did
photograph the scene and collected 10 samples for laboratory analysis. The laboratory analysis was
negative for any accelerant/ flammable liquid. He indicated that a negative finding in an arson
incident was not unusual and this could be impacted by the fire department firefighting operations
or simply the intensity of the fire. He failed to note that the removal of all floor coverings and
washing down the surface by investigators might have an effect. He did not interview either of the
Williss. His investigation using his portable gas detector yielded negative results.

Mr. Dailey testified that he hired six guys to remove everything from the house (beyond the two
rooms cleaned by the public sector investigators). Clearly, these individuals did not and were not
qualified to examine debris evidence. The goal of this activity was simply to expose the floor.

25
 In discussing fire patterns Mr. Dailey focused on the fact that fire goes up and only
acknowledged banking down of heat in closed compartment fires, but regarded such banking down
as unusual. He regarded the damage to the front door jamb as not consistent with a non-arson fire
and as an indicator of a suspicious fire. At the same time, he acknowledged that charring to the
porch deck was the result of radiation from burning above.

In examining the front door jamb sill, he noted severe charring as well as flammable liquid
patterns on the underside of the jamb board. He believed the patterns on the underside could not
have occurred due to heating from above and must have been the result of flammable liquid. He did
not address the potential role of the carpeting or padding. He did describe the patterns on the jamb
as similar to patterns on the living room floor. Mr. Dailey considered the patterns on the floor of the
living room and dining room to be flammable liquid pour patterns. He considered the extent of
damage to the furniture to be inconsistent with an accidental fire, indicating that the damage was
due to the use of a flammable liquid. He noted the annealing of the couch springs and opined that
this was characteristic of an accelerant being placed upon the couch. He eliminated a cigarette
ignition of a couch as the cause, indicating that such ignitions are difficult and infrequent. As
anyone who has followed the safe cigarette movement knows, this is far from the truth.

Dailey sees pour patterns underneath the couch that he attributes to the flow of flammable
liquid under the couch through the carpet and pad. He seems not to recognize that when
polyurethane burns, a liquid melt is formed which often burns beneath the couch in the same
manner as a flammable liquid might, nor does he generally acknowledge that the carpet and
padding also form liquids during decomposition, nor does he acknowledge that accidental fires
generally can produce floor patterns. He also denies that upholstered furniture will burn completely
in the absence of an accelerant (see e.g., Mealy and Gottuk, 2006, as an example of complete
consumption of a couch). At the same time, Dailey acknowledges that low burn patterns are not
unusual.

Dailey considers burning of linoleum as unusual in a fire and indicative of a flammable liquid
fire. He ignores the fact that the back door was fully consumed in the fire and that this source of air
would enhance local burning in this area.

26
 Interestingly, at trial Dailey changed his mind about flammable liquid in bedroom #3. While his
direct observation of bedroom #3 led him to believe that there was a pour pattern, on reviewing his
photos he reconsidered this opinion and considered the damage due simply to drop down burning. It
is notable that his photo was deemed more instructive than his direct observation during his scene
investigation. While Dailey correctly understood the interior finishes to be wood panel walls and
cellulosic ceiling tiles, he did not believe the cellulosic ceiling tiles were flammable. Rather he
thought the tiles were glued to the ceiling and it was only the glue that was flammable. Later in his
testimony he contradicted this construction and asserted that the ceiling tile was nailed into furring
strips. Interestingly, Dailey took samples of the wood subfloor in the dining room and living room
but did not take samples of the carpet or pad that had been in those rooms because the debris pile
left to him by the public sector investigators included debris from both rooms together. Without
being able to identify which room the sample came from, he declined to have the carpet and pad
sampled at all.

While Dailey was clear in his own mind that flammable liquid had been poured in the living
room, dining room, and kitchen, he had no idea how much liquid would be required to cause the
observed pattern. He also opined that in his experience flammable liquid did not run horizontally in
carpeted floors and burned only where poured. He also opined that the fire would not spread to the
adjacent carpet where no flammable liquid was present. At the same time, he actually had no idea
how much carpet had burned because he essentially ignored the debris pile on the porch as a source
of evidence. He did not use his portable gas detector to investigate the debris pile.

While Dailey did inspect the breaker box in the home, he did not dissemble the outlets in the
dining room and living room to evaluate electrical activity in these areas that may have caused the
fire. He did no examination of electrical appliances in these rooms.

Daileys direct testimony ended with him opining that the fire was in fact arson. He testified
that no fuel load was present that could explain the burn patterns on the floor, could burn through
the ceiling into the attic, and completely destroy the furniture items in the dining room and living
room. Apparently, he did not recognize the carpet and padding as a fuel load, the wood paneling
and cellulosic ceiling tiles as a fuel load, and the furniture as items fully capable of complete

27
consumption in accidental fires. Indeed, he directly testified that the dining room table was not part
of the fuel load and he did not expect it to burn, only char. He opined directly that the consumption
of the table was direct evidence that an accelerant was involved.

Dailey opined that Ernest Williss statement of his actions upon discovering the fire were not
possible because they did not comport with his view of the fire and the flammable liquid pour.
Dailey spoke of the rapidity of the fire spread along the path of the flammable liquid, but nowhere
in his testimony does the identity of the flammable liquid ever come up.

On cross examination Dailey acknowledged the rapid flame spread that is expected on the wood
paneling present in the living room and dining rooms. Dailey was clear in his own mind that
radiation from above could not create the burn patterns on a carpeted floor. He was unaware of any
view in the profession that floor patterns could be created by radiation from above.

Willis Analysis

In the Willis case, the investigation included a number of organizations and individuals. The
reports and testimonies of individuals do not generally reflect a team investigation approach.
Deputy Sherriff Jackson seems to be the center of the investigation in terms of the time spent on the
scene and interacting with the various investigators. The writer was not provided any documents
that were produced by Sherriff Jackson and his trial testimony was similarly not available to the
writer. The State Fire Marshalls made only a brief site visit and appeared to not have done any other
form of investigation. While it is common for insurance investigators to cooperate with the public
sector, in the Willis case, the private sector provided the most detailed report and overall
documentation.

FM Cheever
In the Willis fire, we find the unusual combination of a very new and junior FM Cheever and an
only slightly more experienced insurance company fire investigator, Investigator Dailey. The
absence of FM Brown from the stand is notable. FM Cheever provides the most basic fire
investigation deficiencies and problems. Beyond his inexperience, he spent less than a day on the
fire scene and did no other form of investigation to develop his opinions. During his site work he

28
took no notes, no photos, collected no evidence, and collected no samples for laboratory analysis.
The process of debris removal was performed without fire investigative purpose. Debris should
have been carefully removed in a layering process with full documentation via photography. In the
process, evidence of the original room contents, evidence of potential accidental causes, evidence of
incendiary devices, or remains of foreign materials should have been sought and documented. In
many fire scenes it is not uncommon to perform this process in a matrix with cells of 1-3 feet in
dimension, using hand trowels and sifting screens. Contrast this process with the wholesale
shoveling out of two entire rooms and piling it all together on the porch without examination. The
evidentiary value of the two rooms was seriously compromised by the methods employed. FM
Cheever was only interested in uncovering the subfloor that he imagined would be a map to the fire.
He was indifferent to the carpet, to the carpet padding, and only found value in well attached floor
tiles and the subfloor.

FM Cheever examined only one electrical outlet and no electrical appliances. One cannot
legitimately eliminate all electrical causes with such a cursory examination. No other accidental
causes were investigated. Indeed, any evidence which would have led to a testable hypothesis was
shoveled out and put in a pile.

The indicators used by FM Cheever for an incendiary fire were low burn, the intensity of the
fire damage, and the damage levels on furniture items. None of these are considered reliable
indicators for the use of an accelerant. He had no idea what quantity of accelerant was needed to
explain the damage, he had no idea what the liquid was, and he had no idea where the liquid came
from.

His knowledge of fire science was significantly below current standards for fire investigators.
He incorrectly thought that carpet could not burn in a room unless an accelerant was used. He
thought that patterns under a furniture item were the result of an accelerant placed on the furniture.
He apparently did not understand that polyurethane foam creates a melt while it burns which often
burns as a spill on the floor beneath the furniture item. He did not understand that differential
damage on a couch from end to end is a normal pattern (e.g., Mealy and Gottuk, 2006). He had no
appreciation of the role of radiation in compartment fires which led to great misunderstandings of

29
the floor damage. He contended that he had never seen a fire where radiation from above played a
role. That is a reflection both of his inexperience and his lack of understanding of what he had seen.

The investigative work by FM Cheever was well below modern standards as was his knowledge
and insights into fire. His work could not be found to be anywhere near the standards anticipated by
NFPA 921.

The investigation conducted by FM Cheever did not meet the standards of the day. Books of the
1980s were very clear with respect to the important role of interviews, which FM Cheever failed to
do or consider. The books of the day were also clear about the need for documentation of the
investigation in the form of notes, photos, logs, sketches, and reports. FM Cheever failed to provide
any form of documentation of his investigation and relied solely upon his personal memory of what
he observed. The books of the day were equally clear about the need for evidence collection and
sampling for the presence of accelerants. FM Cheever did not examine most of the debris removed,
retained no evidence, and failed to sample for the presence of an accelerant. He was further
uninterested in the results of laboratory analysis of samples taken by others.

In terms of his use of indicators, the literature of the day was full of cautions about low burn and
burn intensity indicators, indicating that these indicators could result from non-arson related causes.
His interpretation of furniture damage patterns was at odds with many 1980s sources. His
examination of only a single outlet and his failure to examine electrical appliances was not
consistent with the standards of the day. FM Cheever did not go through a process of elimination of
other causes, the widely accepted methodology at the time.

The investigation by FM Cheever did not meet the process requirements of the day, and failed
to consider the widely disseminated warnings about misinterpretation of low burn and burn
intensity indicators. His investigation was sufficiently flawed that no conclusions could be justified
with reference to the standards of care of the day.

Investigator Daily
Investigator Daily performed a reasonable investigation as an insurance investigator based upon
the time spent and the documentation developed. Since the two most important rooms had been

30
destroyed from an evidentiary viewpoint before he arrived, he was at a distinct disadvantage.
Nonetheless, he repeated the mistakes by others when he examined other rooms. Untrained crews
were used to empty and clean the rooms without any eye toward examination of the debris as it was
discovered and removed. He did use a portable gas detector to search for indications of ignitable
liquids and he did collect samples for laboratory analysis. Most samples seem to have been taken
after washing the floors, limiting the likelihood of finding a positive sample. He also ignored the
debris pile from the rooms of origin in terms of taking samples. These are exactly the materials that
could have had residues of ignitable liquids. Dailey did not dissemble electrical outlets and did not
find or examine any appliances. Dailey also did interview eyewitnesses to the fire. His trial
testimony was entirely devoid of any discussion of the identity of the accelerant, the quantity used,
and the source of the accelerant. In his report, he opined that it was half a gallon of methanol, based
upon his belief that this was on the front porch before the fire. He never located any bottles or
fragments of bottles.

Daileys fire science knowledge was severely limited. He did not believe the normal fuel load of
the home was capable of creating floor patterns. He considered the complete consumption of
furniture items to be abnormal and as such an indicator of arson. He believed that only an arson fire
could anneal furniture springs. Remarkably, he eliminated smoking as a cause because he felt
ignition of furnishings by a cigarette was highly unlikely. He thought that a pattern under a couch
would be the result of a liquid poured on the carpet spreading under the couch and burning there,
seeming to not understand that polyurethane foam creates a spill fire when it burns. He believed
floor patterns could only be created by an arson event. He considered cellulosic ceiling tiles to be
not flammable, but he did recognize the hazards of wood paneling. He did not think that a fire
based upon the normal materials present in the home could create a fire that would breach the
ceiling. Overall, his knowledge of fire phenomena was well below modern investigator standards.

By modern standards, Investigator Daileys investigation relied upon incorrect understanding of

fire indicators. He failed to use the scientific method and he attributed the fire to arson without
identification of any accelerant via laboratory or field method. He failed to identify the accelerant
used, its quantity, or the source of the accelerant. Under modern standards, his findings and
conclusions cannot be sustained.

31
 Investigator Daily performed a reasonable investigation as an insurance investigator based upon
the time spent and the documentation developed. Since the two most important rooms had been
destroyed from an evidentiary viewpoint before he arrived, he was at a distinct disadvantage and
ultimately could not reach defensible conclusions due to the inability to adequately examine the
apparent rooms of origin. He compounded the error by his unwillingness to examine the debris pile
from the two rooms simply because the pile contained debris from two rooms. His electrical
examination was so limited that it could not form the basis for excluding electrical ignition sources.

He relied significantly upon fire indicators that the texts of the day provided cautions about their
reliability. He ultimately concluded that Willis started the fire because according to Daileys
understanding of the fire, had Willis been on the couch when the arson occurred, he would have
died. Dailey never confirmed the presence of any accelerant, did not identify the accelerant in his
testimony, and had no idea how much accelerant would be needed to spread accelerant over two
entire rooms as he believed occurred. In essence he relied entirely upon floor patterns and the
severity of burning as the basis for his finding of arson by Willis. At the time of his investigation, it
was recognized in texts that these indicators were inconclusive. His investigation did not comport
with the standard of care for arson investigation at the time of the investigation.

WILLINGHAM CASE

The Willingham fire occurred on December 23, 1991 at 10:34 am. Stacy Willingham had left
the house at about 9:15 am, leaving husband Cameron Willingham and the three children, Amber,
Karmon, and Kameron, sleeping. Cameron awoke as Stacy was leaving, heard the twins crying and
gave them each a bottle. They were in their bedroom on the floor. Amber was asleep in her bed.
Upon being alerted to the fire by Amber, he instructed her to leave the home and went to rescue the
twins. Only Cameron was able to escape the fire and the three children died.

Vasquez Report

Manuel Vasquez, of the State Fire Marshalls Office, conducted his scene investigation on 30
December 1991 and 2 January 1992, about a week after the fire. Other persons present during the
examination were: Doug Fogg, Corsicana Assistant Fire Chief; James Palos, Corsicana Fire

32
Marshal; James Hensley and Rex Givens, Corsicana Police Detectives; Edward Cheever and
Donald Turk, State Fire Marshal Deputy Investigators.

The report described the damage and patterns observed at the fire scene, and included two
diagrams of the scene (see Figure 1 for a scene plan indicating damage) and 81 captioned photos.
The home was a three bedroom single story structure. There was severe fire damage in the northeast
bedroom where the children slept with flame extension from all windows of that room. There was
severe damage in the hallway outside the bedroom and out the front door. Both the childrens
bedroom and the front door abutted the front porch of the home, which was severely burned as well.
The rear portions of the hallway had heat damage and smoke damage. The living room (northwest)
and the master bedroom (west) had heat and smoke damage. The door between the kitchen and the
hall was closed during the fire and the kitchen and the rear bedroom (southwest) were subjected
primarily to smoke damage. Fire did not propagate into the attic in any room of the home, but some
damage above the ceiling of the porch was evident.

Both the childrens bedroom and the front of the hallway had been fully involved in fire with
burn damage over the full height of the spaces. There was a childs gate at the childrens bedroom
but this was wholly consumed and no door was present. The front door of the home was fully
consumed and the screen door frame was fully consumed at the top and charred at the base. The
aluminum threshold of the front door disclosed a burn pattern underneath, which was taken as an
indication that a liquid accelerant flowed underneath and burned. There were burn patterns on the
floor of the front part of the hallway that were taken as an indicator of combustible liquid pour. The
floor tiles were fully consumed in portions of the area and the wood below was damaged. The floor
damage and a V pattern in the hall were taken to indicate an area of origin. A space heater in the
rear portion of the hall was examined and was deemed a victim of the fire rather than the cause.

33
Figure 1. Scene diagram from the Vasquez report.

34
 Floor damage patterns taken to be indicators of combustible liquid pour extended into the
childrens bedroom. Damage in the room was highest at the location of a bed and two cribs in the
room. The electrical wiring was examined in this room and was not found to be the cause of the
fire. A space heater in the childrens room was excluded as a cause of the fire. The floor of the
childrens room had patterns that were taken as indicators of liquid accelerant.

Damage to the porch walls was from floor to ceiling and damage to the ceiling was severe. The
damage to the walls adjacent to the porch were taken as inconsistent with normal burning because
they extended to the floor level rather than simply upward from the window and doors where flame
issued onto the porch. This was taken as an indicator of incendiarism. Crazed glass on the front
porch side of the home was taken as an indicator of a fire that burned fast and hot. Brown stains on
the porch were taken as indicators of a liquid accelerant burning on the porch. The underside of the
porch screen door was charred and was taken as an indication that a liquid accelerant flowed under
the door. A container of charcoal lighter was found in a damaged state at the end of the porch. A
sample of wood debris from the base of the front door was found positive for kerosene.

FM Vasquez determined that there were multiple origins based upon his scene examination and
from statements of eyewitnesses. The role of eyewitness observations in this determination was not
provided. FM Vasquez satisfied himself that he had eliminated electrical and natural gas causes. He
determined that the fire was incendiary and the fire traveled from the childrens bedroom into the
hall and out onto the porch. FM Vasquez found Willinghams statement of his actions the morning
of the fire to be pure fabrication, saying A fire does not lie. In essence he is indicating his
confidence in his interpretation of the physical evidence over the statement of Mr. Willingham.

Police Report (Hensley Report)

Detective Corporal James Hensley provided the majority of the documentation of the police
investigation of this fire. He also provides information obtained by Corsicana Fire Marshall James
Palos. FM Palos did some eyewitness interviewing from December 27 and summaries of interview
by Assistant Chief Doug Fogg are also included. The scene investigation occurred on 30 December,
and 2 January. It appears that the police investigation started once the scene investigators
determined that the fire was intentionally set. The narrative of the interviews appears to be a

35
complete record of interviews without respect to the person or organization who conducted the
interview. In excess of 50 interviews were conducted in the course of the investigation.

Civilian Eyewitnesses to Fire (6 individuals)

Observations of eyewitnesses to the initial part of the fire are generally consistent. They
describe the fire as severe with fire issuing onto the porch and flames extending from the porch,
though at least one eyewitness saw the fire when only smoke was issuing from the building. One
eyewitness in two different interviews noted that he saw flames coming through the front doorway,
indicating that the door was left open. This is consistent with the view of the door hinge in the FM
photographs, though this issue is not addressed in the report.

Eyewitnesses saw Willingham outside the home in a state of distress with a number of
witnesses reporting that he called out that his babies were burning. Actions by Willingham noted by
eyewitnesses included moving his car away from the home and breaking out the front window of
the childrens bedroom. After the fire department arrived, Willingham sat on the back of a fire truck
and several times needed to be restrained from attempting to reenter the home. He was handcuffed
by police for his own safety. Eyewitnesses observed that he was only wearing pants and that he had
singed hair on his chest, eyelids, and head and had a two inch burn injury to his right shoulder. His
wrists and hands were blackened with smoke. He was eventually transported to the hospital for
treatment, still resisting and still in handcuffs.

Eyewitnesses provided important observations of the fire conditions as well. As might be

expected in a police report, the fire observations obtained in the interviews is not the focus of the
report. At the time the first eyewitnesses observed the home, there was smoke issuing from the
front door, the windows were intact, and no fire was observable from the outside of home.
Willingham was seen standing on the porch two feet in front of the door. Notably, an early
eyewitness thought that Willingham could have gone back into the home to conduct a second
rescue attempt based upon the lack of visible flame and the moderate smoke observed. The first
observation of flame outside the building occurred when Willingham broke out windows in the
childrens bedroom. Flames issued from the broken window openings. Subsequently, the fire
transitioned to a fully developed fire in the bedroom with flames issuing from all the windows

36
(regardless of whether they were broken out or not) and from the front door, consistent with
flashover occurring in the childrens bedroom. The flames then involved the ceiling of the porch
and the exterior walls of the home on the porch. One arriving eyewitness noted low fire on the
porch between the door and the window, though it is unclear whether he was referring to the
childrens bedroom window or the window from the living room onto the porch.

Firefighter and Police Eyewitnesses to Fire (5 individuals)

First arriving firefighters found the bedroom, hallway, and porch well involved in fire. Fire was
issuing from all windows of the bedroom, from the front door, and the ceiling of the porch was
fully involved. Firefighting proceeded fairly quickly with an initial external attack, followed soon
thereafter by an interior attack through the front door. Rescue work occurred in parallel with fire
suppression activities. Amber was located in the middle bedroom, was removed, and transported to
a hospital. She died at the hospital. The twins were found in the childrens bedroom, severely
burned. They were pronounced dead at the scene.

Cameron and Stacy Willingham

Cameron Willinghams account of the incident was provided to investigators via a taped
interview. He awoke in the morning as Stacey was leaving the home. He heard the twins crying and
gave them each a bottle. The twins were on the floor of their room with a child gate at the door.
Amber was in her bed in the childrens bedroom. He went back to bed and was awakened later,
hearing Amber calling daddy, daddy. He awoke to a room thick with smoke such that visibility was
very limited. He felt for his pants, put them on, and instructed Amber to leave the home. He got up,
checked the door to the kitchen, and found only light smoke in the kitchen. Smoke was heavier in
the hallway and especially heavy moving forward in the hallway toward the childrens bedroom. He
had to crouch down to move forward in the hallway. He reported hearing electrical popping sounds.
He went over the childs gate into the childrens bedroom and as a result his hair was either
thermally damaged or burned. He was unable to see in the childrens bedroom due to the smoke
density, but was aware of an orange glow high in the space. He crawled around the floor searching
for the twins. He found a bottle and a doll, but did not find either of the twins. He never heard them
cry or make any sounds. Burning material began falling from the ceiling, with one piece falling on
his shoulder, causing a burn. He recalls entering to the center of the room where he touched the

37
childs slide that was already melting. He exited the room over the child gate and burned his hand
while touching the door frame. In the front hallway, he struggled with the door, ultimately opening
the door and screen door, exiting to the front porch, leaving the front door open. He caught his
breath, recovering from the smoke exposure, and considered reentering the building. He saw
neighbors and asked them to call 911 and called out that his babies were burning. While on the
porch he heard a loud crash that he imagined was the ceiling fan falling from the childrens
bedroom ceiling. He did not reenter and broke open the windows to the childrens bedroom in a
failed attempt to enter the room. Flames came out of the window openings, indicating to him that
he would not be able to enter. The electrical service line burned off the home and fell onto the
ground. After the fire department arrived he was taken to the back step of a FD engine. He had to be
forcibly restrained from attempting to go into the building and approach Amber when she was
rescued. He was handcuffed and restrained by police and others. He was put on a stretcher and
taken to the hospital for treatment. He was kept in the hospital overnight. He reported burns to his
shoulder, ears, face, hair, and fingers.

Willingham reported the contents of the childrens bedroom as including two cribs, one childs
bed, a dresser, a ceiling fan, a space heater, a childs plastic slide, a Little Tikes kitchen, a wagon of
toys, and a childs gate at the doorway. The floor was tile with a carpet patch defining a childs play
area. In the hallway, the only contents were decorating items on the walls, like big plastic butterflies
and whatnots.

Willingham indicated that they had squirrels in their attic for some time before the fire and
indicated his concern that the fire was electrical in origin.

He reported his relationship with Stacey as rocky at first, but improving over time. They had
married three months before the fire. They did have arguments and spats, the last of which was 23
weeks before the fire. He described his arrest history and his probation violation. Willingham was
unemployed at the time of the fire and was watching the kids.

Stacy Willingham awoke 730800 am the morning of the fire when the kids awoke. She
changed their diapers and fed them. She left to run some errands. She was found by police and
notified of the fire. She went directly to the hospital.

38
 Stacy reported the last fight they had had two weeks before the fire. She noted that the front
door was unlocked after she left the home because they had lost the key.

Persons with Knowledge of Cameron Willingham (~40 individuals)

These interviews are not summarized here as they do not deal directly with the fire scene
investigation or the events of the day. They do provide information about Willinghams arrest
history, his relationships with others, the dynamics of the household, and his past in general.

Fogg Report

Corsicana Fire Department Assistant Chief Douglas Fogg prepared an eight page report of the
investigation. As a first responder he provided a narrative of the fire department operations. He
arrived after the first FD unit arrived when Lt. Franks was operating a hand line from the porch. He
saw Willingham outside the building with burnt hair and smoke on his face. He relieved Lt. Franks
so the Lt. could don his breathing apparatus. He observed that the exterior attack quelled the flames
but they reestablished themselves when the attack was ceased. He was relieved fairly quickly by
another FF and he went to the rear of the home. He found the back door blocked by a refrigerator.
When the refrigerator was moved and the door opened black smoke issued from the door. He
moved to the front of the home to help establish ventilation and the primary search was underway.
FF Vandiver found Amber and removed her from the home. Lt. Frank found the twins in the
childrens bedroom. Judge Mayfield declared them deceased on the scene and ordered an autopsy
of the twins. Detectives Blake and Hollingsworth took photos of the twins before Assistant Chief
Fogg removed the bodies from the home.

Lt. Frank was on the first arriving unit and flames were issuing from the front door and
windows to the childrens bedroom. The ceiling of the porch was fully involved in flame. The home
was a single story wood frame building with walls of sheetrock and some wood paneling. The
location of the paneling was not indicated.

Low burn was noted on the front porch under the childrens room windows and on the exterior
living room wall on the porch. Fire damage was limited to the childrens bedroom and the front
hallway with smoke and heat damage elsewhere in the home. The door to the kitchen had been

39
closed during the fire based upon the damage patterns. Damage in the childrens bedroom was from
floor to ceiling. Based upon damage patterns AC Fogg determined that the gas-fired space heater
was not in the area of origin. He noted floor damage he judged consistent with liquid pour patterns
in the front hallway and into the childrens bedroom. The room was substantially burned out with
the dresser 8090% consumed and the chest of drawers was 6070% consumed. The irregular
pattern of floor damage was observed over most of the rooms floor. Electrical wiring in the room
showed no shorting but no appliances were noted. The fire did not penetrate the ceiling and spread
to the attic. The presence of the ceiling fan and its condition were not reported. The twins were
severely burned. The cribs and bed had remnants of their cotton mattresses.

Low burn patterns were found on the porch walls and the front door was fully consumed. The
screen door was burned away at the top and had char on both faces of the remaining door as well as
on the underside of the door. Remnants of two plastic containers were found on the concrete porch.
No accidental cause could be found to explain the burn patterns in the childrens bedroom, the hall,
and the porch. Samples for accelerant detection were taken and sent to the lab but the nature and
number of samples taken were unidentified. The front screen door was thought to have been
initially closed but opened during firefighting operations. The methodology for examining the fire
scene was not discussed and no mention of the pile of room contents outside the childrens
bedroom was found in the report. On December 26 the floors of the home were further cleaned and
low burn and puddling marks were found to connect the childrens bedroom, the front hallway, and
the porch. AC Fogg opined that the fire was started at floor level in such a way to block the exit
path.

FM Vasquez arrived on 27 December and additional unspecified samples were taken. The fire
was taken to be arson at this time. On 30, 31 December additional unspecified samples were taken.
Additional photographs and videos were taken of the fire scene. The burn patterns indicated that the
fire started on the floor in the childrens bedroom/hallway, and this was thought to be inconsistent
with Willinghams story of his actions because he was not sufficiently burned as AC Fogg thought
would be the case. On January 26 a class 3 petroleum distillate (medium petroleum distillates such
as mineral spirits) was found in unidentified samples. Later it was identified that the positive
samples were from the porch, where there was known to be a container of charcoal lighter.

40
Vasquez Testimony

After providing his training and experience, FM Vasquez offered that he has investigated 1200-
1500 fires and that most of them were arsons. He reviewed the photographic evidence for the jury
and noted that The fire tells a story. I am just the interpreter, sounding much like a fortune teller.
He continued, And the fire does not lie, It tells me the truth. implying that he, the interpreter,
could not be wrong. He identified from the condition of the floor once cleaned that a liquid had
covered much of the floor area of the childrens bedroom. He eliminated the space heaters as the
cause of the fire because they were turned off, but provided no basis for knowing that the heaters
were turned off, as he arrived at the scene four days after the fire and after significant activities on
the scene had been completed. He regarded the fire damage to the childrens bedroom to be not
normal, though he failed to provide a basis or rationale for this opinion. Later, he indicated that he
believed the temperatures were higher at floor level than at ceiling level, though how he came to
that conclusion is unclear. He concludes that this abnormality was due to the accelerant. In his
examination of the porch, he concluded that the fire spread into the house and not out of the house.
This is contradicted by early civilian eyewitnesses. In examining the threshold, he observes low
burn at the doorway and melted aluminum. He opined that wood burns at 800F and concludes that
an accelerant was necessary to cause the aluminum to reach its 1200F melting temperature. He went
on to opine that there were pour patterns in the hallway and the intent of the pour was to block the
exit. He further opined that a liquid had been poured on the door that was completely consumed,
apparently thinking that the consumption of the door would not have been possible without
accelerant on it. He opined that there was liquid pooling on both sides of the door. He opined that
the charring of the baseboard meant that a flammable or combustible liquid was poured in front of
it, apparently rejecting the idea that radiation from the door and porch ceiling flame could have
ignited the entire wall.

He summed up his internal home site investigation by noting that the damage to the floor
indicates thats the whole room here on the northeast (childrens) bedroom is a point of fire
origin. He went on to opine that the hallway was an additional area of origin and the porch was a
third area of origin. He opined that these areas of origin were unconnected and as such they
indicated that the fire was intentionally set by a human. Remarkably, he opined that the fire having

41
auto-ventilated (breakage of window glass) was an indicator of arson. He asserted, Thats
inconsistent with fire behavior. He went on, Puddle configurations, pour patterns, low char
burning, charred floor, the underneath burning of the base board, the brown stains on the concrete,
the underneath of the bed, because of the fire right underneath the bed, puddle configurations in that
area, and the total saturation of this floor is indicated with pour patterns. He told the jury that these
were facts and he was just using the facts. He opined that the liquid needed to have been a
combustible liquid and not a flammable liquid because with such a large pour area he would have
expected injury to the arsonist or a loud sound associated with the ignition of the large cloud of
flammable liquid. He cited Willinghams testimony as a pure fabrication because it was
inconsistent with FM Vasquezs view of the fire patterns. He further eliminated child firesetting on
the basis of the extent of the pour patterns and his conclusion that Willingham could not have
escaped the home if the child did set such a fire because the front hallway exit path would have
been involved in flame. He provided no basis for this opinion. FM Vasquez asserted that he was
also able to determine that the bedroom pour was ignited, then the hallway, and then the porch. He
remarked that There was a discernible path, but it was not enough to be a connecting path. No
basis for this opinion was provided. While no basis was provided, apparently FM Vasquez was able
to be sure that the fire in the bedroom could not have ignited the hallway pour or the porch pour,
and that they must have been each ignited by a human. No basis for the opinion was offered. He
further opined that Willinghams injuries were self-inflicted. FM Vasquez diagnosed that
Willingham did not experience smoke inhalation based upon his meeting with Willingham perhaps
a week after the fire. FM Vasquez had apparently suffered some throat damage in a fire which he
associated with smoke inhalation and saw on evidence of his own experience in talking to
Willingham. This testimony was allowed. Later, he concluded The fire, itself, tells me that its a
very aggressive fire; and, therefore, the fire was not a planned fire. It was a spur-of-the-moment
fire.

On cross examination, FM Vasquez acknowledged that deep burns in the floor can be caused by
means other than accelerants. He acknowledged that he did not know how large the carpeted area
was within the childrens bedroom. During cross examination it became clear that FM Vasquez had
not learned that there was a grill on the front porch at the time of the fire that was moved away
during operations by the fire department. FM Vasquez described that debris had been shoveled out

42
of the bedroom and hallway. He indicated a lack of knowledge of the debris contents, indicating
that he had not been present when the debris removal occurred or that he simply didnt examine the
debris during removal. He even seemed unclear what tools had been used to remove the debris.

Defense counsel posited a hypothesis of an outside person entering the home and starting the
fire. FM Vasquez acknowledged that such a scenario was possible and was consistent with the case
facts. FM Vasquez indicated that the childrens bedroom doorway had no door when he arrived, but
did not know if there had been one at the time of the fire. On being shown a fire scene photo that
showed no hinge plate, he acknowledged that there was no sign of a door having been present. FM
Vasquez opined that the front door had been closed at the time of the fire. FM Vasquez was
unaware of the initial eyewitness observations of no fire on the porch and the observations of
smoke flow out of the front door prior to fire department arrival. He was unaware that a childs gate
had been at the childrens bedroom doorway.

Defense counsel posited a scenario of child firesetting using lamp oil and FM Vasquez agreed
that based upon the available evidence, this scenario could not be ruled out. FM Vasquez was
unaware of lighters collected from the house by the police. On redirect, he opined that he thought it
unlikely that a two year old would be physically capable of this act.

FM Vasquez saw no need to secure the fire scene from the time of the fire through the end of
the scene investigation. He opined that the fire was arson, with the intent to kill the children. Upon
questioning by defense counsel he offered that his opinion regarding the motive was wholly based
upon his fire scene investigation, i.e., his examination of the physical evidence of the fire. Later, he
acknowledged that from physical evidence it was not possible for him to know who or how a pour
had been formed. He also acknowledged that the fire started in the childrens bedroom and it is
possible for a person in the master bedroom to have escaped at a time where fire had not yet spread
to the hallway.

Fogg Testimony

He first described his activities and observations during the fire. The description was brief and
consistent with his report. They found no evidence that the space heaters had started the fire and

43
found no shorting in the bedroom wiring. No mention of appliances was made. He found floor
damage he thought consistent with liquid pour patterns. He identified the floor construction to be
carpet tiles with plywood underlayment, tar paper, and the original oak floor. He indicated that he
examined the plastic toy remains and concluded that during the fire the toys had not melted. He
opined that the damage at the front door threshold was caused by a liquid flowing under the
threshold and burning under the threshold. He opined that the staining of the concrete was due to
liquid accelerant.

On cross examination, he conceded that puddle patterns can be caused by other means than a
liquid accelerant and that some clothing and plastic toys can melt. He acknowledged that the stain
on the porch could be the result of a simple barbeque accident. He opined that latex paint is not
flammable.

Chief Fogg acknowledged that a child could have started the fire with a lighter or match and
that his evidence could not eliminate this hypothesis. On redirect he indicated that it was his
opinion that a child did not start this fire based upon his interpretation of the pour patterns. He was
unable to say that the child starting the fire was impossible, but rather that he simply regarded the
possibility as remote. He also opined that tar paper and glue could not have been responsible for the
burn patterns because they were not on the top of the floor assembly, despite the fact that the
patterns seen were on the subflooring. He opined that glue could only cause the patterns if it had
been poured on the floor. During the recross examination he testified that he did not recognize that
glue could be thermally degraded and create melt without access to air. His understanding was that
the glue would be unaffected until exposed to air where combustion could occur. Chief Fogg
acknowledged that the porch stain could have occurred due to the charcoal lighter fluid that had
been in the damaged containers found in the front of the home.

After having admitted that he had not excluded child firesetting as a cause, and that the porch
stain evidence could have nothing to do with the fire, he reasserted his opinion that the fire was
intentionally set. He relied upon his personal belief rather than using the scientific method or the
process of elimination.

44
Willingham Analysis

In the Willingham case, the investigations include a number of organizations and individuals.
The reports and testimonies of individuals do not generally reflect a team investigation approach. In
the Willingham fire, it was unclear who the lead investigator was. The division of labor tended to
reflect traditional roles with the fire department and State Fire Marshalls Office leading in the
scene inspection areas, and the police focusing on interviewing. Communication did not always
appear to be effective in that the police collected evidence that was unknown to the FM. Similarly,
the FM seemed unaware of some of the eyewitness interviews conducted by others.

It is the goal of this analysis to examine the investigations in the light of both the current state of
the art, as well as in the light of the contemporaneous state of the art.

Assistant Chief Fogg

In the Willingham fire, the fire investigators were Assistant Chief Fogg and Fire Marshall
Vasquez. Quite normally, AC Fogg is the local fire official and FM Vasquez is the state
investigator. While the local police were involved in interviewing and obtaining documents, they
appear based upon the records reviewed that they worked in a supporting role with respect to the
fire investigation.

AC Fogg was among the first responders and as such was involved directly with the
investigation from the very beginning and it was he who called upon the State Fire Marshalls
Office for assistance.

In examining potential causes of the fire, there was no mention of examining any electrical
appliances or the ceiling fan in the childrens bedroom.

AC Fogg relied upon the floor patterns throughout the childrens bedroom as indicating that an
accelerant had been spread over the entire bedroom. He also opined that based upon floor patterns,
accelerant had been used in the hallway and porch. He was unable to identify an accidental fire
cause that could explain the patterns. Indeed, the patterns need not be associated with the cause of
the fire at all. The bedroom and hallway had simply been fully involved in flame such that floor

45
damage and associated patterning would be expected as a result of the fully developed fire, rather
than due to the use of an accelerant.

The appearance of brown stain on the porch at the front door was taken as an indicator of an
accelerant spill which was ignited to start the fire. AC Fogg did not consider or explain how this
could be true in the light of the early eyewitnesses who saw no fire on the porch or at the front door.
These eyewitnesses directly contradict the hypothesis that AC Fogg accepted. No samples of the
concrete were taken for analysis and no consideration was given to accidental causes of spill
residues at that location which were thermally decomposed by the heat of the fire to turn brown.
The only positive test for liquid residues came from the front door threshold where petroleum
distillates consistent with charcoal lighter were detected. There was evidence that charcoal lighter
would have been used routinely on the porch to ignite a grill and that two fire damaged bottles of
charcoal lighter had been on the porch at the time of the fire. These provide hypotheses regarding
the presence of petroleum distillates at the front door threshold that involve accident spills of
charcoal lighter prior to the fire and spills of charcoal lighter due to damage to the charcoal lighter
containers found in the area of the porch. No basis for exclusion of these hypotheses was found. On
cross examination, he admitted that the porch stain could have nothing to do with the cause of the
fire. Professionally, he should have found the cause of the porch stain and the liquid residue at the
threshold as undetermined and as such he should not have provided an opinion regarding their
cause.

On cross examination, AC Fogg was asked if Amber could have started the fire. AC Fogg
admitted that he could not rule out this hypothesis. On redirect he sought to minimize the likelihood
based upon the patterns found, i.e., his opinion that it was not likely that Amber could have created
such a spill pattern. Nonetheless, he could not rule it out. There is no available evidence that an
outside individual was considered as the fire setter. It was known that the front door was unlocked.
The only basis proffered for Willingham as the fire setter was that had the hallway been subjected
to an accelerant spill, he could not have escaped without serious lower body injuries. This of course
relies upon the correctness of the pattern interpretation in the hallway.

46
 AC Fogg exhibited limited understanding of the patterns caused by fully developed room fires
and the response of materials to heat. He discounted the ability of tar paper and glue to create melt
patterns. During his trial appearance, he opined that glue could not be thermally decomposed
without direct access to air. In examining the toys in the childrens bedroom, he opined that they
had not melted. He did not document this opinion and it is an incredible assertion. It is well known
that toys like the slide and kitchen set are made of polyethylene. The idea that polyethylene would
not melt in a fully developed fire is incredible. During his testimony, he asserted that water-based
paints are not flammable. These are latex paints that use water as the carrier. Once the paint dries, it
is a layer of latex which is an organic material that is fully capable of burning in a well developed
room fire.

In the end, the only bases for the determination of arson by AC Fogg is the burn patterns on the
floor of the childrens bedroom, the hallway, and the porch interpreted as accelerant spill. None of
these determinations have any basis in modern fire science.

AC Foggs investigation did not comport with the requirements of NFPA 921, the modern
standard of care. Further, his investigation did not satisfy the contemporaneous standard of care. His
hypothesis was directly contradicted by eyewitness testimony and he admitted that he had not
eliminated other possible causes.

FM Vasquez
FM Vasquez generally held the same opinions as AC Fogg, though he expressed additional
opinions regarding arson indicators that he cites. He regarded the floor patterns in the bedroom, the
hallway, and the porch to indicate an accelerant spill. Again, these have no actual basis.

He used the appearance of a V pattern in the hallway wall as an indicator of an origin in the
hallway. While there can be no doubt there was low burning in the front of the hallway, the V
pattern on the wall moving toward the back of the hall is in no way an indicator of origin
necessarily. It resulted from burning in the front of the hallway and would be present whether the
hallway was an origin or not.

47
 He regarded the burning of the exterior walls of the house on the porch as not consistent with a
natural fire and as such indicates arson. His views seem to be that arson fires are systematically
more severe than natural fires. There is no basis for this notion in modern fire science. The low
burning of the exterior walls resulted from the heating of the wall by ceiling flames in the porch.
There is no need to postulate any special fire phenomenon or any spill fire. He takes the presence of
crazed glass on the porch as an indicator of a fast and hot fire due to accelerant. In fact it is much
more likely that any crazing resulted from the application of water to hot glass during firefighting.

His interpretation of the brown stain on the front porch as an accelerant pattern is without merit.
He took no concrete samples for analysis and the stain has alternate hypotheses as already
discussed. The charring of the underside of the screen door was taken as an indicator of an
accelerant fire below the screen door. No such interpretation is supported by modern fire science
and it ignores the burning of other materials and the thermal environment created by normal fires.
Despite the presence of charcoal lighter use on the porch prior to the fire and the presence of
charcoal lighter containers on the porch during the fire, FM Vasquez accepted the presence of these
petroleum distillates as an arson indicator.

In his report, FM Vasquez indicated that the eyewitness statements supported his theory of three
origins (porch, hallway, and bedroom). In fact, the early eyewitnesses observed no flame on the
porch when Willingham was already outside and they simply observed modest smoke flow from
the hallway. Indeed, from her exterior view, one eyewitness could not understand why Willingham
wasnt reentering the building. This is hardly consistent with the theory of widespread use of
accelerant and a rapidly growing fire. There is nothing in the eyewitness observations that suggests
anything other than a local ignition in the bedroom with the fire growing to involve the hallway and
reaching flashover conditions in the bedroom well after his exit from the building. The eyewitness
observations are sufficient to cause the failure of FM Vasquezs hypothesis about the fire.

FM Vasquez is unique among the investigators of both fires in his attitudes toward arson and
fire scene examination. His statistics of the fraction of fires which are in fact arson are remarkable
and far exceed any rational estimate. It reflects his predisposition to find arson in his cases. This
directly violates NFPA 921 and professional norms in general. His quotations that The fire tells a

48
story, I am just the interpreter, and the fire does not lie, it tells me the truth, are hardly consistent
with a scientific mindset and is more characteristic of mystics or psychics. The quotes separate the
findings from his own judgment and seek to make him not responsible for his own interpretation. It
seems to deny the role of rational reasoning. It is an expression of fire investigation as a mystical art
rather than an application of science and reason.

FM Vasquez opined that the front door was closed during the fire. He seemed unaware that
early observers saw smoke flowing from the front doorway and they did not see flames on the porch
initially. Both are inconsistent with his view of the fire. He opined that accelerant was splashed onto
the surfaces of the door, apparently believing that the consumption of the door could not be
explained by any other mechanism. There is no scientific basis for this assertion. Doors can be
consumed fully by natural fires. Returning to his mysticism he states, The fire, itself, tells me that
its a very aggressive fire; and, therefore, the fire was not a planned fire. It was a spur-of-the-
moment fire. Such statements are beyond belief in the context of fire investigation as an applied
science.

His ideas about fire are often inconsistent with modern fire science. He opines that auto
ventilation is an arson indicator. It is and has been well known that natural fires can and do break
out windows. He opined that wood burns at 800 F so that in order to melt aluminum (1200 F) an
accelerant must be involved. It is and has been known that flame temperatures of ordinary
combustibles like wood are no less than liquid fueled fires and both are more like 2000 F. He
opines that a fully developed bedroom fire could not ignite the fire in the hallway or the porch.
They must have been set separately. Indeed, fire spread from the bedroom to the hallway and its
wood paneling and door are exactly what would be expected from a fully developed bedroom fire.
The spread of fire out of the front door and windows and involving the ceiling of the porch and
subsequently the porch walls is exactly what would be expected from a natural fire. This is normal
fire dynamics, not a sign of arson. Similarly, he had no appreciation of the ability of thermal
radiation to create floor and lower wall patterns and damage.

FM Vasquezs opinions about Willinghams injuries are remarkable. His injuries are entirely
consistent with being exposed to a room fire environment with general singing of his upper body

49
areas. Self inflicting such injuries implies intentional self-exposure to a room fire environment. The
injuries could not be created by any sort of localized heat and smoke source. If FM Vasquezs view
of the fire is correct, it is unclear how Willingham could have entered a room with a hot gas layer at
all. Understanding how burn injuries could occur is an important part of fire investigation and FM
Vasquez seems to be wholly without any realistic understanding of fires and how fire injuries are
created.

In his scene examination, FM Vasquez was indifferent to the contents of the rooms before the
fire. He never sought to understand that the bedroom had no door and did have a childs gate. He
knew little about the contents of the bedroom and hallway before the fire. He was also unaware of
the presence of a grill on the front porch. He simply did not recognize that there was a normal use
of charcoal lighter on the front porch and that the presence of the charcoal lighter was not an
abnormal fuel.

At trial FM Vasquez denied that it was possible for a child to have accidentally or intentionally
set this fire. He was unaware that the police had collected several cigarette lighters from the home.
His rationale for eliminating the scenario was based upon his understanding that an accelerant was
spread over most of the childrens bedroom, the front of the hallway, and the front porch. He further
opined if anyone other than Willingham had spread the accelerant to these areas, he would not have
survived the fire. In the end, his elimination of this cause hypothesis is solely based upon his
erroneous understanding of the floor patterns. FM Vasquez did acknowledge that the hypothesis
that an outside person entered and started the fire is consistent with the case facts. Nonetheless, it
did not change his opinion about cause.

In the end FM Vasquez concludes that the fire was arson based solely on the physical evidence
at the fire scene. Remarkably, he gleans human intent from the physical evidence. Apparently, the
fire communicates with FM Vasquez about people as well. FM Vasquezs opinions are nothing
more than a collection of personal beliefs that have nothing to do with science-based fire
investigation.

FM Vasquezs investigation did not comport with the requirements of NFPA 921, the modern
standard of care. Further, his investigation did not satisfy the contemporaneous standard of care. His

50
hypothesis was directly contradicted by eyewitness testimony and he admitted that he had not
eliminated other possible causes. FM Vasquez is unique among the investigators of both fires in his
attitudes toward arson and fire scene examination. His approach toward fire scene investigation is
not found in any text of the day.

CONCLUSIONS

The investigations of the Willis and Willingham fires did not comport with either the modern
standard of care expressed by NFPA 921, or the standard of care expressed by fire investigation
texts and papers in the period 19801992. The investigators had poor understandings of fire science
and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire
indicators. Their methodologies did not comport with the scientific method or the process of
elimination. A finding of arson could not be sustained based upon the standard of care expressed by
NFPA 921, or the standard of care expressed by fire investigation texts and papers in the period
19801992.

REFERENCES

1. Almirall, J. and Furton, K. (2004), Analysis and Interpretation of Fire Scene Evidence,
CRC Press, Boca Raton, FL, 272 pp.

2. Babrauskas, V., Krasney, J. (1985) Fire Behavior of Upholstered Furniture, NBS

Monograph 173, NBS, Gaithersburg, MD.

3. Bates, E.B. (1975), Elements of The Fire and Arson Investigator, Davis Publishing Co.,
Santa Cruz, CA, 171 pp.

4. Blackshear, P., Editor (1974), Heat Transfer in Fires: Thermophysics, Social Aspects,
Economic Impact, Scripta Book Co., Washington, DC, 516 pp.

5. Brannigan, F., Bright, R., and Jason, N., (eds.) (1980), Fire Investigation Handbook, US
Government Printing Office, Washington, DC.

6. Canfield, D. (1984). Causes of Spalling Concrete at Elevated Temperatures, The Fire

and Arson Investigator, 33 (2), pp. 3031.

7. Cardoulis, J. (1990), The Art and Science of Fire Investigation, (Self-published).

8. Carroll, J. (1979), Physical and Technical Aspects of The Fire and Arson Investigator,
Charles C. Thomas Publishers, Springfield, IL.

51
9. Casto, R. and Wright, C. (1984), Open Windows and Thermal Inversion May
Complicate a Fire Investigation, The Fire and Arson Investigator, 34 (4), pp. 1416.

10. Cullis, C.F. and Hirschler, M.M. (1981), The Combustion of Organic Polymers, Oxford
University Press, New York, NY.

11. DeCicco, P.R. (ed.) (2002), The Behavior of Glass and Other Materials Exposed to Fire,
Applied Fire Science in Transition, Volume 1, Baywood Publishing Co., Amityville, NY,
207 pp.

12. DeHaan, J. (1983), Kirks Fire Investigation, 2nd Edition, John Wiley and Sons, Ltd.,
West Sussex, England, 352 pp.

13. DeHaan, J. (1987), Are Localized Burns Proof of Flammable Liquid Accelerants? The
Fire and Arson Investigator, 38 (1), pp. 4550.

14. DeHaan, J. (1991), Kirks Fire Investigation, 3rd Edition, Prentice-Hall Inc., Englewood
Cliffs, NJ, 416 pp.

15. DeHaan, J. (2002), Kirks Fire Investigation, 5th Edition, Pearson Education, Upper
Saddle River, NJ, 448 pp.

16. Drysdale, D. (1985), An Introduction to Fire Dynamics, 1st Edition, John Wiley & Sons,
Ltd., West Sussex, England, 451 pp.

17. Ettling, B. (1990), Will Gasoline Cause the Underside of Boards to Burn? The Fire and
Arson Investigator, 40 (3), pp. 3234.

18. Fang, J. (1981), Repeatability of Large-scale Room Fire Tests, Fire Technology, 17(1),
pp. 515.

19. Fire, F. (1985), Plastics and Fire Investigations, The Fire and Arson Investigator, V36
(2), pp. 2734.

20. Fitch, R. and Porter, E. (1975), Accidental or Incendiary, Charles C. Thomas Publishers,
Springfield, IL, 224 pp.

21. Friedman, R. (1989), Principles of Fire Protection Chemistry, 2nd Edition, National Fire
Protection Association, Quincy, MA, 254 pp.

22. Gohar, M. (1983), Accelerant Behavior in Fire, The Fire and Arson Investigator, 34
(2), pp. 2931.

23. Gottuk, D., White, D. (2008), Liquid Fuel Fires, SFPE Handbook of Fire Protection
Engineering, National Fire Protection Association, Quincy MA.

52
24. Gudmann, J. and Dillon, B. (1988), Multiple Seats of FireThe Hot Gas Layer, The
Fire and Arson Investigator, 38 (3) pp. 6162.

25. Harmer, R., Moss, R., Noland, T., and Thaman, R. (1983), Liquid Burn Patterns on
Linoleum, The Fire and Arson Investigator, 33 (4), pp. 34.

26. Hobson, C., (1992), Fire Investigation, A New Concept, Charles C. Thomas Publishers,
Springfield, IL, 371 pp.

27. Icove, D.J. and DeHaan, J.D. (2004), Forensic Fire Scene Reconstruction, Pearson
Prentice Hall, Upper Saddle River, NJ, 400 pp.

28. Kennedy, J. and Kennedy, P.M. (1985), Fires and Explosions, Determining Cause and
Origin, Investigations Institute, Chicago, IL, 1505 pp.

29. Kennedy, J. and Kennedy, P.M. (1977), Fire-Arson Explosion Investigation,

Investigations Institute, Chicago, IL, 1163 pp.

30. Kirk, P. (1969), Fire Investigation, John Wiley and Sons Ltd., West Sussex, England.

31. Krasny, J.F., Parker, W.J., and Babrauskas, V. (2001), Fire Behavior of Upholstered
Furniture and Mattresses, Noyes Publications, Norwich, NY, 437 pp.

32. Lie, T.T. (1972), Fire in Buildings, Applied Science Publishers, London, England.

33. Lentini, J. (1982), A Documented Case of Accelerant Induced Concrete Spalling, The
Fire and Arson Investigator, 33 (2), pp. 3031.

34. Lentini, J. (1998), Differentiation of asphalt and smoke condensates from liquid
petroleum distillates using GC/MS, Journal of Forensic Sciences, 43(1), pp 97113.

35. Lentini, J.J. (2006), Scientific Protocols for Fire Investigation, CRC Press/Taylor &
Francis Group, Boca Raton, FL, 604 pp.

36. Ma, T., Olenick, S., Klassen, M., Roby, R. and Torero, J. (2004), Burning Rate of Liquid
Fuel on Carpet (Porous Media), Fire Technology, 40, 227246.

37. Mealy, C.L. and Gottuk, D.T. (2006), A Study of Unventilated Fire Scenarios for the
Advancement of Forensic Investigations of Arson Crimes, Office of Justice Programs,
National Institute of Justice, Department of Justice, 98IJCXK003, Washington, DC.

38. National Fire Academy (1983), Student Guide for Fire/Arson Detection, National Fire
Academy, Washington, DC.

39. National Fire Academy (1988), Incendiary Fire Analysis & Investigation Course Guide,
Open Learning Fire Services Program, Washington, DC.

53
40. National Fire Academy (1996), Incendiary Fire Analysis & Investigation Course Guide,
Open Learning Fire Services Program, Washington, DC.

41. NFPA 921 (1992), Guide for Fire and Explosion Investigations, National Fire Protection
Association, Quincy, MA, 120 pp.

42. NFPA 921 (2008), Guide for Fire and Explosion Investigations, National Fire Protection
Association, Quincy, MA, 305 pp.

43. Noon, R. (1995), Engineering Analysis of Fires and Explosions, CRC Press, Boca Raton,
FL, 277 pp.

44. Phillipps, C. and McFadden, D. (1986), Investigating the Fireground, Second Edition,
Fire Engineering Books & Videos, New York, NY, 275 pp.

45. Putorti, A. (2001), Flammable and Combustible Liquid Spill/Burn Patterns, NIJ Report
60400, National Institute of Justice, Washington, DC.

46. Quintiere, J. (2006), Fundamentals of Fire Phenomena, John Wiley & Sons, Ltd., West
Sussex, England, 460 pp.

47. Pagni, P. (2003), 2002 Howard W. Emmons Invited Plenary Lecture Thermal Glass
Breakage. Fire Safety Science 7: pp 322.

48. Patten, A., Russell, J. (1986), Fire Litigation Sourcebook, Garland Law Publishers, New
York, NY.

49. Richardson, J.K., (ed.) (2003), History of Fire Protection Engineering, National Fire
Protection Association, Quincy, MA, 312 pp.

50. Roberts, C. (1982), The Challenge of Black Spots, The Fire and Arson Investigator, 32
(3), pp. 1318.

51. Roblee, C. and McKechnie, A. (1981), The Investigation of Fires, Prentice-Hall Inc,
Englewood Cliffs, NJ, 209 pp.

52. Shanley, J. (1997), USFA Fire Burn Patterns Tests, Federal Emergency Management
Agency (FEMA), Washington, D.C.

53. Smith, F. (1981), Concrete Spalling Under Controlled Conditions, The Fire and Arson
Investigator, 32 (2), pp. 3839

54. Society of Fire Protection Engineers (1988), SFPE Handbook of Fire Protection
Engineering, 1st Edition, DiNenno, P.J. (ed.), National Fire Protection Association,
Quincy, MA.

55. Stauffer, E., Dolan, J., and Newman, R. (2007), Fire Debris Analysis, Elsevier, Inc.,
Oxford, UK, 672 pp.

54
56. Stickevers, J. (1982), Flammable Liquids Interpretations of Burn Patterns, The Fire and
Arson Investigator, 33 (2), pp. 2427.

57. Stone, I. and Lomonte, J. (1984), False Positions in Analysis of Fire Debris, The Fire
and Arson Investigator, 34 (3), pp. 3640.

58. Swab, S. (1983), Incendiary Fires: A Reference Manual for Fire Investigators, Robert
Brady Company, Bowie, MD, 168 pp.

59. Taylor, R. (1985), Carpet, Wood Floor, and Concrete Burn Patterns Often are not from
Flammable LiquidsAre a Highly Misunderstood Aspect of Fire Investigations, The
Fire and Arson Investigator, 35 (3), pp. 3234.

60. Taylor, R. (1986), Flammable and Combustible Liquid Characteristics in Certain Types
of Fires, The Fire and Arson Investigator, 37 (1), pp. 4548.

61. Tobin, W. and Monson, K. (1989), Collapsed Spring Observations in Arson

Investigations: A Critical Metallurgical Evaluation, Fire Technology, 25(4),
pp 317335.

62. Tobin, W. (1990), What Collapsed Springs Really Tell Arson Investigators, Fire
Journal, 84(2), pp 2427.

63. Tu, M., Davis, S. (1976), Flame Spread of Carpet Systems Involved in Room Fires,
NBSIR 76-1013, National Bureau of Standards, Washington, DC.

64. Tuve, R. (1976), Principles of Fire Protection Chemistry, National Fire Protection
Association, Quincy, MA.

65. Wolfe, A. J., Mealy, C.L. and Gottuk, D. T. (2009), Fire Dynamics and Forensic
Analysis of Limited Ventilation Compartment Fires Volume 1: Experimental. Office of
Justice Programs, National Institute of Justice, Department of Justice, Washington, DC.

66. Zicherman, J. and Allard, D. (1989), PU Dominant for a Decade, The Fire and Arson
Investigator, 40 (2).

55
 Appendix A

CRAIG L. BEYLER, Ph.D., Technical Director

EDUCATION:

Ph.D. in Engineering Science, Harvard University, 1983

M.S. in Mechanical Engineering, Cornell University, 1980
M.Sc. in Fire Safety Engineering, University of Edinburgh, 1978
B.S. in Fire Protection Engineering, University of Maryland, 1976
B.S. in Civil Engineering, Cornell University, 1975

PROFESSIONAL EXPERIENCE:

Technical Director, Hughes Associates, Inc., 1990present. Responsible for technical quality of fire
protection design, research, and development projects and professional development of
engineering staff. Project manager for a variety of fire protection R&D/T&E programs.
Development and use of analytical methods in fire dynamics, fire chemistry, fire detection, fire
suppression, smoke and heat venting. Development of mathematical fire models and modeling
techniques for specialized applications, including zone and field models. Risk and hazard
analysis for a wide range of specialized applications.

Principal, Fire Science Technologies, 19871990. Development of compartment fire models including
computer-based models and simple correlationally-based models for ships and buildings.
Preparation and presentation of a five-day short course for the HAZARD I hazard analysis
package. Litigation support for a range of fire situations.

Assistant Professor of Fire Protection Engineering and Mechanical Engineering, Worcester Polytechnic
Institute, 19851987. Taught graduate courses in Combustion, Fire Dynamics, and Fire
Chemistry. Advised MS thesis work for FPE graduate students. Research in fire dynamics
including compartment fire growth, smoke movement, pool fire radiation as well as fault tree
approaches to link fire growth predictions to performance based fire safety objectives. Chaired a
committee to totally restructure the graduate courses in the FPE degree programs and instituted
an ongoing seminar program.

Visiting Scientist, Fire Research Station at Borehamwood, England, 19841985. Conducted experimental
and theoretical investigations of piloted ignition of solid fuels. Prepared a review paper of the
state-of-the-art of knowledge of plume and ceiling jet flows.

Postdoctoral Fellow, Harvard University, 19831984. Conducted an extensive experimental program to

study the effect of oxygen starvation effects on the generation of projects of combustion,
especially carbon monoxide, in a compartment fire environment. Experimental and theoretical
studies of hot layer ignition in compartment fires.

Research Associate, Department of Fire Protection Engineering, University of Maryland, 19761977.

Engineer (part-time), Center for Fire Research, National Bureau of Standards, 19751976.

Security Clearance: DOD Top Secret

DOE "Q" (inactive)

A-1
PROFESSIONAL STANDING:

Committees, Boards, and Panels:

International Association for Fire Safety Science
Chairman, International Association for Fire Safety Science, 2005present
Vice Chair, International Association for Fire Safety Science, 20022005

PROFESSIONAL STANDING (Continued):

th
Program Committee Chair, International Association for Fire Safety Science8 International Symposium,
20032005
th
Program Committee, International Association for Fire Safety Science7 International Symposium,
20012002
th th
Awards Committee, International Association for Fire Safety Science4 and 5 International Symposia

Society of Fire Protection Engineers

Member, SFPE Technical Steering Committee, 1998present
Chair, SFPE Task Group on Engineering Practices: Radiation from Fires, 1996present
Chair, SFPE Task Group on Engineering Practices, 19961998
Member, Research Committee, Society of Fire Protection Engineers, 19881995
Member, Engineering Education Committee, Society of Fire Protection Engineers, 19831995

National Fire Protection Association

Toxicity Technical Advisory Committee, National Fire Protection Association, 2002present
Member, Guide for Fire and Explosive Investigations, NFPA 921, 1998present
Task Group for NFPA 204: Guide for Smoke and Heat Venting, 1996present
Alternate Member, Smoke Management Systems, National Fire Protection Association, 1996present
Task Group for NFPA 92B: Guide for Smoke Management in Malls, Atria, and Large Spaces,
1992present
Member, Contents and Furnishings Committee, National Fire Protection Association, 1992present
Member, Subcommittee on Fire Detection Design Methods, 72 EM, National Fire Protection
Association, 19831988

Academic Advisory Boards

Advisory Board, University of Maryland, Dept. of Fire Protection Engineering, 2003present
Advisory Board, Worcester Polytechnic Institute, Center for Firesafety Studies, 20002008
Industrial Advisory Board, Oklahoma State University, Fire Protection and Safety Engineering Technology
Department, 19982006

Government Evaluation Boards

Panel Member, Board on Assessment of NIST Programs, National Research Council, 1999 to 2005
National Academy of Science, Committee to Identify Innovative Research Needs to Foster Improved Fire
Safety in the US, 20012002

Society Memberships:
Member, National Fire Protection Association, 1987present
Member, International Association for Fire Safety Science, 1985present
Member, Society of Fire Protection Engineers, 1983present
Member, Combustion Institute, 1980present
Member, Salamander Honorary Fire Protection Engineering Society, 1977present

Technical Journals and Books:

Founding Editor, Journal of Fire Protection Engineering, 19881992

A-2
PROFESSIONAL STANDING (Continued):

Associate Editor, Fire Technology, 2009present

Member, Editorial Advisory Board, Fire Safety Journal, 2004present
Member, Editorial Advisory Board, Journal of Fire Protection Engineering, Society of Fire Protection
Engineers, 1992present
Member, Editorial Advisory Board, Fire Technology, 1984present
st nd rd
Co-editor, SFPE Handbook of Fire Protection Engineering, 1 , 2 , and 3 editions, 1984present
Reviewer, Combustion and Flame, Fire Safety Journal, Journal of Fire Science, Fire and Materials, IAFSS
International Symposia, Combustion Institute International Symposia

Honors:
Rasbash Medal, Institution of Fire Engineers, 2009
Arthur B. Guise Medal, Society of Fire Protection Engineers, 2000
Harold E. Nelson Service Award, Society of Fire Protection Engineers, 2005
Fellow, Society of Fire Protection Engineers, 1999
Hats Off Award, Society of Fire Protection Engineers, 1995
Jack Bono Engineering Communications Award, with Curt Ewing and Homer Carhart, 1995
Special Commendation Award, Society of Fire Protection Engineers, 1995
Special Commendation Award, Society of Fire Protection Engineers, 1993
Presidents Award, Society of Fire Protection Engineers, 1990
Directors Award, Society of Fire Protection Engineers, 1989

Patents:
Multi-signature Fire Detection, Roby, R.J., Gottuk, D., Beyler, C., Patent Number 5,691,703,
November 25, 1997.

3/09

A-3
 SELECTED PUBLICATIONS LIST

Craig L. Beyler, Ph.D.

Swann, J.H., Hartman, J.R. and Beyler, C.L., Study of Radiant Smoldering Ignition of Plywood
Subjected to Prolonged Heating Using the Cone Calorimeter, TGA, and DSC, Fire
Safety Science Proceedings of the 9th International Symposium, International
Association of Fire Safety Science, Karlsruhe, Germany, September 2126, 2008,
pp. 155166.

Trelles, J., Beyler, C.L., Floyd, J.E., Scheffey, J.L., and Yee, K., Fire and Smoke Spread
Modeling to Support Damage Control Assessment and Decision Making in Shipboard
Environments, Proceedings of the American Safety of Naval Engineers Automation and
Control Conference, Biloxi, MS, December 11, 2007.

Beyler, C.L. and Gottuk, D.T., Development of a Technical Basis for Carbon Monoxide
Detector Siting, The Fire Protection Research Foundation, Quincy, MA, October 2007.

Beyler, C.L. and Gratkowski, M.T., Low-Voltage (14VAC) Electrical Circuit Fire Initiation,
ISFI 2006 Proceedings Addendum, International Symposium on Fire Investigation
Science and Technology, Cincinnati, OH, June 2628, 2006, pp. 1523.

Beyler, C.L., Gratkowski, M.T., and Sikorski, J., Radiant Smoldering Ignition of Virgin
Plywood and Plywood Subjected to Prolonged Heating, ISFI 2006 Proceedings
Addendum, International Symposium on Fire Investigation Science and Technology,
Cincinnati, OH, June 2628, 2006, pp. 314.

Beyler, C., Self-heating properties of styrene-butadiene rubber, Fire and Materials, 30 (3),
May/June 2006, pp. 215222.

Beyler, C.L., Fay, T., Gratkowski, M., Campbell, B., and Hartman, J.R., Ignition studies of
cerium nitrate treated towels, Fire and Materials, 30 (3), May/June 2006, pp. 223240.

Gratkowski, M.T., Dembsey N.A., and Beyler, C.L., Radiant smoldering ignition of plywood,
Fire Safety Journal, 41, May 2006, pp 427443.

Beyler, C., A brief history of the prediction of flame extinction based upon flame temperature,
Fire and Materials, 29 (6), September 2005, pp. 425427.

Beyler, C., Toxicity Assessment of Products of Combustion of Flexible Polyurethane Foam,

Fire Safety Science Proceedings of the 8th International Symposium, Gottuk, D. and
Lattimer, B. (eds.), International Association of Fire Safety Science, Beijing, China,
September 2005, pp. 10471058.

A-4
Lattimer, B. and Beyler, C., Heat Release Rates of Fully-developed Fires in Railcars, Fire
Safety Science Proceedings of the 8th International Symposium, Gottuk, D. and
Lattimer, B. (eds.), International Association of Fire Safety Science, Beijing, China,
September 2005, pp. 11691180.

Beyler, C., Relationship Between Structural Fire Protection Design and Other Elements of Fire
Safety Design, NET-SFPE Workshop for Development of a National R&D Roadmap for
Structural Fire Safety Design and Retrofit of Structures: Proceedings, Almand, K.H. and
Phan, L.T. (eds.), NISTIR 7133, National Institute for Standards and Technology,
Gaithersburg MD, 2004, pp. 100106.

Lattimer, B.Y., Hunt, S.P., Wright, M.T., and Beyler, C., Corner Fire Growth in a Room with a
Combustible Lining, Fire Safety ScienceProceedings of the Seventh International
Symposium June 16-21, 2002, Evans, D. (ed.), International Association for Fire Safety
Science, 2003, pp. 419430.

Beyler, C., White, D., Peatross, M., Trellis, J., Li, Sonny, Luers, A., and Hopkins, D.,
Assessment of the Fire Exposure in the Airplane Impact Areas of the Two World Trade
Center Towers, Design Structures for Fire Structural Forensic Conference held
September 30 - October 1, 2003 at the Radisson Plaza Lord Baltimore, Society of Fire
Protection Engineers, Bethesda, MD, 2003, pp. 6574.

Gottuk, D., Peatross, M., Roby, R., and Beyler, C., Advanced Fire Detection Using Multi-
Signature Alarm Algorithms, Fire Safety Journal, 37, 2002, pp. 381394.

Reneke, P., Peatross, M., Jones, W., Beyler, C., and Richards, R., A Comparison of CFAST
Predictions to USCG Real-Scale Fire Tests, Journal of Fire Protection Engineering, 11
(1), 2001, pp. 4368.

Beyler, C.L., Fire Safety Challenges in the 21st Century, Journal of Fire Protection
Engineering, 11 (1), 2001, pp. 415.

Beyler, C.L., and Cooper, L.Y., Interaction of Sprinklers with Smoke and Heat Vents, Fire
Technology, 37 (1), 2001, pp. 935.

Forssell, E.W., Back, G.G., Beyler, C.L., DiNenno, P.J., Hansen, R., and Beene, D., An
Evaluation of the International Maritime Organizations Gaseous Agents Test Protocol,
Fire Technology, 37 (1), 2001, pp. 3767.

Back, G.G., Beyler, C.L., and Hansen, R., The Capabilities and Limitations of Total Flooding
Water Mist Fire Suppression Systems in Machinery Space Applications, Fire
Technology, 36 (1), 2000, pp. 823.

White, D.A., Beyler, C.L., Williams, F.W., and Tatem, PA., Modeling Missile Propellant Fires
in Shipboard Compartments, Fire Safety Journal, 34, 2000, pp. 321341.

A-5
Back, G.G., Beyler, C.L., and Hansen, R., Quasi-Steady-State Model for Predicting Fire
Suppression in Spaces Protected by Water Mist Systems, Fire Safety Journal, 35 (4),
November 2000, pp. 327362.

White, D., Beyler, C.L., Fulper, C., and Leonard, J., Flame Spread on Aviation Fuels, Fire
Safety Journal, 28, 1997, pp. 131.

Beyler, C.L., Hunt, S.P, and Iqbal, N., A Computer Model of Upward Flame Spread on Vertical
Surfaces, Fire Safety ScienceProceedings of the Fifth International Symposium, Y.
Hasemi (ed.), International Association for Fire Safety Science, London, England,
March 1997, pp. 297308.

Peatross, M.J. and Beyler, C.L., Ventilation Effects on Compartment Fire Characterization,
Fire Safety ScienceProceedings of the Fifth International Symposium, Y. Hasemi (ed.),
International Association for Fire Safety Science, London, England, March 1997,
pp. 403414.

Beyler, C.L., Flammability Limits of Premixed and Diffusion Flames, SFPE Handbook of Fire
Protection Engineering, Second Edition, NFPA, Quincy, MA, Chapter 2-9, 1995,
pp. 2-1472-159, (First Edition, 1988, Chapter 1-17, pp. 1-2861-297.)

Beyler, C.L. and Hirschler, M.M., Thermal Decomposition of Polymers, SFPE Handbook of
Fire Protection Engineering, Second Edition, NFPA, Quincy, MA, Chapter 1-7, 1995,
pp. 1-99 - 1-119, (First Edition, Beyler (sole author), Chapter 1-12, 1988,
pp. 1-1651-178.)

Gottuk, D.T., Roby, R.J., and Beyler, C.L., The Role of Temperature on Carbon Monoxide
Production in Compartment Fires, Fire Safety Journal, 24, June 1995, pp. 315331.

Back, G., Beyler, C., Tatem, P, and DiNenno, P, Wall Incident Heat Flux Distributions
Resulting from an Adjacent Fire, Fire Safety ScienceProceedings of the Fourth
International Symposium, International Association of Fire Safety Science, Boston, MA,
1994, pp. 241252.

Ewing, C.T., Beyler, C.L., and Carhart, H.W., Extinguishment of Class B Flames by Thermal
Mechanisms; Principles Underlying a Comprehensive Theory; Prediction of Flame
Extinguishing Effectiveness, Journal of Fire Protection Engineering, 6 (1), 1994,
pp. 2354.

Peatross, M.J., and Beyler, C.L., Thermal Environment Prediction in Steel-Bounded

Preflashover Compartment Fires, Fire Safety ScienceProceedings of the Fourth
International Symposium, International Association of Fire Safety Science, Boston, MA,
1994, pp. 205216.

A-6
Gottuk, D.T., Roby, R.J., and Beyler, C.L., A Study of Carbon Monoxide and Smoke Yields
from Compartment Fires, Twenty-fourth Symposium (International) on Combustion, The
Combustion Institute, Pittsburgh, PA., 1993.

Beyler, C.L., A Unified Model of Fire Suppression, Journal of Fire Protection Engineering, 4
(1), 1992, pp. 5-16.

DiNenno, P.J. and Beyler, C.L., Fire Hazard Assessment of Composite Materials: The Use and
Limitations of Current Hazard Analysis Methodology, Fire Hazard and Fire Risk
Assessment, ASTM STP 1150, Marcelo H. Hirschler (ed.), American Society for Testing
and Materials, Philadelphia, PA, 1992, pp. 8799.

Gottuk, D.T., Roby, R.J., Peatross, M.J., and Beyler, C.L., Carbon Monoxide Production in
Compartment Fires, Journal of Fire Protection Engineering, 4 (4), 1992.

Beyler, C.L., Analysis of Compartment Fires with Overhead Forced Ventilation, Fire Safety
ScienceProceedings from the Third International Symposium, Elsevier Applied Science,
NY, 1991, pp. 291300.

Fitzgerald, R.W., Richards, R.C., and Beyler, C.L., Firesafety Analysis of Polar Icebreaker
Replacement Design, Journal of Fire Protection Engineering, 3 (4), 1991, pp. 137150.

Skelly, M.J., Roby, R.J., and Beyler, C.L., An Experimental Investigation of Glass Breakage in
Compartment Fires, Journal of Fire Protection Engineering, 3 (1), 1991, pp. 2534.

Deal, S. and Beyler, C.L., Correlating Preflashover Room Fire Temperatures, Journal of Fire
Protection Engineering, 2 (2), 1990, pp. 3348.

Shanley, J., and Beyler, C.L., Horizontal Vent Flow Modeling with Helium and Air, Second
International Symposium on Fire Safety Science, Hemisphere Publishing Co., 1989,
pp. 305314.

Shokri, M. and Beyler, C.L., Radiation from Large Pool Fires, Journal of Fire Protection
Engineering, 1 (4), 1989, pp. 141149.

Thomson, H.E., Drysdale, D.D., and Beyler, C.L., An Experimental Evaluation of Critical
Surface Temperature as a Criterion for Piloted Ignition of Solid Fuels, Fire Safety
Journal, 13, 1988, p. 185.

Beyler, C.L., Fire Plumes and Ceiling Jets, Fire Safety Journal, 11, 1986, p. 53.

Beyler, C.L., Major Species Production by Diffusion Flames in a Two Layer Compartment Fire
Environment, Fire Safety Journal, 10, 1986, p. 47.

A-7
Beyler, C.L., Major Species Production by Solid Fuels in a Two Layer Compartment Fire
Environment, First International Symposium on Fire Safety Science, Hemisphere
Publishing Co., 1986, p. 431.

Beyler, C.L., A Design Method for Flaming Fire Detection, Fire Technology, 20 (4), 1984,
p. 5.

Beyler, C.L., Ignition and Burning of a Layer of Incomplete Combustion Products, Combustion
Science and Technology, 39, 1984, p. 287.

Beyler, C.L. and Gouldin, F.C., Flame Structure in a Swirl Stabilized Combustor Inferred by
Radiant Emission Measurements, Eighteenth Symposium (International) on Combustion,
The Combustion Institute, Pittsburgh, PA, 1981, p. 1011.

Beyler, C.L., An Evaluation of Sprinkler Discharge Calculation Methods, Fire Technology, 13

(3), 1977, p. 185.

A-8
 Barry C. Scheck , Esq.
Peter J. Neufeld, Esq.
Directors
Maddy delone , Esq.
Executive Director
Innocence Project
100 Fifth Avenue , 3 Floor
New York , NY 10011

Tel 212. 364. 5340

Fax 212. 364. 5341
ww. innocenceproject. org

August 20 , 2010

Texas Forensic Science Commission

c/o Leigh M. Tomlin, Commission Coordinator
Sam Houston State University
College of Criminal Justice
Box 2296
816 1 Street
Huntsvile , Texas 77341- 2296

BY EMAIL TO THE COMMISSION AND INDIVIDUAL COMMISSIONERS

Dear Texas Forensic Science Commissioners

Thank you for the opportunity to supplement the record before you with regard to the
Willngham/Wilis allegation.

First and foremost , it is important that the Texas Forensic Science Commission (Commission)
recognize that the Innocence Project has alleged that the Texas Fire Marshal' s Offce (FMO)
1 that:
committed professional negligence by failng to inform the Texas criminal justice system
the arson analyses the FMO had previously provided to it had been proven uneliable
and
the national fire investigation community had universally accepted National Fire
Protection Association Code 921 (NFP A 921) as the onl? scientifically acceptable means
of analyzing fires to determine if such fires had been set.
The FMO' s failure to inform the criminal justice system , which statutorily relies upon the FMO
for evidence of arson 3 had the result of preventing the courts , the Board of Pardons and Parole
and the Governor from consistently understanding that they must not rely upon the discredited
arson findings when considering cases at trial , pre- trial , or post-conviction. Had the FMO
properly notified those paries:

1 Throughout this document , the " Texas criminal justice system " means all parties who make decisions on behalf of
the government in fire-related criminal proceedings.
2 See

3 See
Tex. Gov t Code 417. 007.
Letter from Innocence Project to the Commission , dated August 13 2008.
 prosecutors would understand the propriety of the arson evidence presented to
them and act appropriately in all cases for which they are responsible;
judges could understand the unreliabilty of such evidence when presented to
them;
the Board of Pardons and Paroles could consider such facts as par of their
pardon and parole considerations; and
the Governor could consider such facts when determining whether or not to
allow the execution of a person who had been convicted , and/or whether to
provide another form of clemency, when presented with a petition noting the
impropriety of such evidence.

Second , the Innocence Project has alleged that , NFP A 921 notwithstanding, the fire investigators
involved in these cases committed professional negligence by failing to conform their
investigations and testimony to the standard of practice of the day. The fire investigators in
question may not have been " scientists " but they knew that their analyses:
Were being relied upon by the Texas justice system for determinations
regarding whether or not a fire had been set;
Were critical to assessments of innocence or guilt by the triers of fact in arson
cases; and
Could have the effect of sending any given defendant to prison for many years
or even result in that person s execution.
Therefore , while these people may have been but simple fire investigators , i. e. not scientists , they
stil had a duty to understand if their methods for ascertaining arson were understood by their
profession to be unreliable. Because it seems clear on its face that the Wilingham and Wilis
fire investigators were negligent in their responsibility to understand the propriety of the methods
they used to determine whether a fire had been set , it is critically important that the Commission
investigate and fuher consider this question.

Finally, the testimony of the FMO' investigator in the Willngham case was patently
inappropriate , and as such represented negligence or misconduct on the part of an agent of the
FMO.

These allegations of negligence and/or misconduct call into question the reliability and validity
of arson investigations and convictions - past, present and future - across Texas. As such , they
demand your review as they are allegations of "professional negligence or misconduct that
would substantially affect the integrity of the results of a forensic analysis conducted by an
accredited laboratory, facility, or entity.

Background

The Statutory Responsibilties of the Texas Fire Marshal to the Texas Criminal Justice System
Pursuant to Texas law, the Texas Fire Marshal is the " chief investigator in charge of the
investigation of arson and suspected arson in the state. s Also according to statute , the Texas
Fire Marshal "may administer oaths and compel the attendance of witnesses and the production
of documents. 6 " If the state fire marshal believes that there is sufficient evidence to charge a

4 Tex. Gov t Code ~ 38. 01(4)(a)(3).

5 Tex. Gov t Code ~ 417. 004 (emphasis added).
6 Tex. Gov t Code ~ 417. 007(d).
Benjamin N. Cardozo School of Law , Yeshiva University
 attempted arson , conspiracy to commit fraud, or another offense related to the
person with arson ,
matter under investigation , the state fire marshal shall give to the appropriate prosecuting
attorney all evidence and relevant information that has been obtained including the names of
witnesses. . . The state shall assist in the prosecution of any complaint he files. 7 It
fire marshal

is therefore beyond question that the Texas Fire Marshal has a clear statutory duty to the Texas
criminal justice system , and specifically to prosecutors considering violations of criminal law.

The Cases that Establish Professional Negligence or Misconduct that Would Affect the Integrity
of Forensic Results
Both Ernest Wills and Cameron Todd Wilingham were convicted of capital murder based on
outdated and disproven arson analyses. Both convictions resulted from arson analyses supported
by the FMO , which provided investigative support for local fire departments. In both cases , an
investigator from the FMO testified to his conclusion: that the fire at issue was set.

Both men spent years in prison because of flawed investigations and testimony for which the
FMO was responsible. Both men languished behind bars despite the fact that fire science had
demonstrated the significant flaws in past traditional forms of analysis. In both cases this was
because the FMO did not alert the Texas criminal justice system that the underlying testimony
supporting the arson convictions was dubious.

Where these cases differ is in their outcomes. In one of these cases - despite the failures of the
FMO - the man sentenced to death for arson/murder based on an unreliable arson analysis had
his conviction vacated , and was compensated on the basis of " actual innocence " by the state of
Texas. That justice resulted not from the FMO' s actions , but despite its inaction. The
prosecutor , Ori White , preparing for re- trial , realized the impropriety of the original arson
analysis and himself moved for justice.

In the other case - because of the failure of the FMO to inform the Texas Court system - neither
the prosecution , judges , Board of Pardons and Paroles , or Governor s office itself learned or
accepted the fact that the arson analysis relied upon to determine his guilt was unreliable. Thus
none of them stopped - or even seriously questioned the propriety of - Mr. Wilingham
execution.

Two very similar fires. Two very similar - and flawed - arson analyses led to conviction. In
both cases the FMO had a duty to tell the cours of the uneliability of previously used arson
analyses. In neither case did the FMO do so. In one case the cour system - because of a
responsible prosecutor s action and despite the FMO' s failure to act - realized the mistake and
exonerated an innocent man. In the other case , no governent actors learned of the uneliability
of the evidence from the FMO or elsewhere , and the Texas criminal justice system allowed this
man to be executed , despite there being no reliable evidence of his guilt.

These cases exemplify the problem we put before you in our May 2006 complaint , a problem
that you as a commission are empowered to investigate and correct: that hundreds of Texans may
be behind bars based upon faulty arson science. 8 In fact , this allegation could have been brought
in the name of Ed Graf, Alfredo Guardiola or any of the estimated 250 to 400 people in Texas

8 Dave Mann Fire and Innocence Texas Monthly, Dec. 2009 -chtt://www. texasobserver.orgicover-storylfre-and-
innocence:; (last visited Aug. 19 2010).
Benjamin N. Cardozo School of Law , Yeshiva University
prisons on bad arson science. 9 While this allegation revolves around the cases of the two men
Ernest Wilis and Cameron Todd Wilingham , it is about far more than them. This allegation is
about the discredited arson analyses that have been used for nearly two decades to determine
innocence or guilt of arson and related charges in the Texas cour system , and the injustices that
persist to this day because the FMO has consistently failed to clearly inform the Texas criminal
justice system that the arson investigation community had universally accepted that the old
folklore- based" fire investigation analyses had been discredited , were unreliable , and had
improperly affected determinations of innocence or guilt.

Analysis

The Fire Marshal' s Offce s Duties to Correct and Inform

Pursuant to our allegation as detailed in our August 13 , 2008 letter to the Commission , your
investigation should be focused primarily on whether the FMO:
1) should have been aware ofNFP A 921 when it was promulgat d in 1992;
2) should have substantially revised its arson analysis procedures thereafter to reflect
scientific findings ofNFPA 921;
3) should have taken into account NFPA 921 once its effect was clear on the Wilingham
case and subsequent cases; and
4) should have notified prosecutors and cours about the substantial change in forensic
arson analysis brought about by NFPA 921 at whatever point after Mr. Wilingham
conviction the FMO adopted the tenets of NFPA 921 and concluded that the analysis
offered by its agents in the Wilingham case and other similar matters lacked scientific
. 10
ment.

In sumary, we suggest that the true question for the Commission to consider in this regard is
whether or not the FMO has been negligent , or committed misconduct , by failing to inform the
Texas criminal justice system , or any specific entities therein , of the unreliability of the
discredited arson analyses it had previously submitted to it.

The Commission has already rightly determined that , when considering whether negligence or
misconduct had occurred , it is not bound by anyone definition of negligence or misconduct , 1 1
but wil instead allow the common understanding of those terms to , along with Commissioners

9 See Id
10
p. 2 , Letter from Innocence Project to the Commission dated August 13 2008.
See
11 While Chairan
Bradley presented the Commission with his recommended definitions of these terms at your first
meeting under his Chairmanship, the Commission expressed strong reservations about being bound to such
defmitions (particularly without the benefit of the only other Commissioner- lawyer being in attendance when those
definitions were considered), and while definitions were ultimately included in the voluntary policy and procedures
guidelines that you accepted by the end of that meeting, the Commission accepted them only after having clearly
established that it would not be bound by them:
Adams: I have a question on the spirit of these policy decisions here. Are these going to be rules , laws or
guidance?
Bradley: They are neither of the first two , they are not rules because we don t have rulemaking authority. They
not laws because only the legislature can do laws.
Adams: I just want it to be clear.
Bradley: They are-guidelines is another good word. I use the words "policies and procedures. " They help us
discipline ourselves. They do not reach out to any other agency or tell them how to behave. And they re not even
enforceable on ourselves. Unofficial transcript of January 29 , 2010 Commission meeting, transcribed by Zev
Averbach, Averbach Transcription , 928 Broadway, Suite 504 , New York , NY 10010.
Benjamin N. Cardozo School of Law , Yeshiva University
 professional expertise , guide its assessments of professional negligence or misconduct in the
forensic setting.

To that end , it may be helpful to keep in mind the common law finding of negligence , then
which , according to well established Texas law , rests primarily upon the existence of reasons to
anticipate injury and the failure to perform the duty arising on account of that anticipation.

We examine the elements of such an analysis , as applied to this allegation , below.

The Fire Marshal's Office knew or should have known ofNFPA 921.

The FMO was or should have been aware ofNFPA 921 when it was promulgated , and ultimately
generally accepted , as the standard for arson investigations by the fire investigation community.
Indeed , FMO regulations , adopted in 1996 , recognize the fact that "the (National Fire Protection
Association (NFPA) is) a nationally recognized standards-making organization. 13 What's more
the FMO has incorporated NFP A standards into its regulatory scheme. 14 Given the preeminence
of the NFP A , the FMO clearly knew - or at the very least , should have known - about NFP A 921
upon its publication in January 1992. Further, the FMO' s leadership responsibility to the cour
system IS on fire-related issues is written into Texas law; as such, the state statutorily relies upon
the FMO to remain abreast of significant developments in its field of expertise , and to act
accordingly. Given that NFPA 921 represents a clear and absolute deparure from the old
discredited and uneliable " folklore " based method of determining if a fire had been set - and
that those " folklore " forms of analyses had individually and specifically been discredited
separate from NFPA 921 - the FMO had a duty to inform the Texas criminal justice system of
the change in accepted professional practice.

Indeed , evidence ofNFPA 921' s acceptance abounded in the 1990s , in Texas and nationwide.
Corsicana Fire Chief Donald McMullan , for example , acknowledges that it is "probably true
that the NFPA 921 was well established by 1995 , and universally acknowledged some three
1998 , it
16 When the National Fire/Arson Scene Planning Panel first met
years later. in April

determined that (its work) should not attempt to supplant those widely accepted consensus
documents (referring to NFPA 921 and standards E1188 and E860 from the American Society
for Testing and Materials) but should supplement them for those public safety personnel who
may not be trained in the specialized aspects of fire scene investigation but may be in the
position of having to respond to a fire/arson scene.
17 In the year 2000 , the International
Association of Arson Investigators formally endorsed the adoption of the 2001 edition of NFP
921. In light of all the above , the FMO knew or should be held to have constructive knowledge
of the universal acceptance of NFP A 921 by the fire investigation community by - at the very
latest - 2000.
12 See
, inter alia, Great Atlantic Pacifc Tea Co. v. Evans 175 S. W.2d 249 251 (Tex. 1943); Wal- Mart Stores
Inc. Tamez 960 S. W.2d 125 , 130 (Tex. App.
v. Corpus Christi 1997); Robinson v. Nat' l Autotech, Inc. 117 S. W.3d
42 (Tex. App. 2003-- Dallas).
13 28
Tex. Admin. Code ~ 34.302.
14 See
28 Tex. Admin. Code ~ 34.303.
15 See
Tex. Gov t Code ~ 417. 004.
16
Response of Corsican a Fire Chief to Leigh Tomlin , dated Sept. 29 , 2009.
17 p. 8
, Fire and Arson Scene Evidence: A Guide for Public Safety Personnel , NIJ Research Report (June 2000).
18 p. 40
, Arson Review Committee Report on the Peer Review of the Expert Testimony in the Cases of State of
Texas v. Cameron Todd Wilingham and State of Texas v. Ernest Ray Wilis , May 2006.
19
Though see infra text accompanying note 21 that the FMO has used NFPA 921 for investigations since 1993.
Benjamin N. Cardozo School of Law , Yeshiva University
 The Fire Marshal's Office should have revised its procedures based on NFP
921.

The FMO should have substantially revised its arson analysis procedures after it accepted NFP
921 to reflect that acceptance. Indeed , there is evidence that the FMO did just this. When asked
at a recent meeting of the Texas Criminal Justice Integrity Unit whether the FMO had adopted
NFPA 921 , Ed Salazar, Assistant Director of the State Fire Marshal' s Offce , responded that the
FMO had not adopted it er se , but that it had been using NFPA 921 as a standard for fire
investigations since 1993.

The Fire Marshal' s Office should have taken into account NFP A 921 once its
effect was clear on the Wilingham case, the Wilis case, and subsequent cases.

Given the Texas criminal justice system s justified reliance on the testimony of the FMO , and
particularly Texas prosecutors ' reliance on evidence and other information provided by the Fire
Marshal as established by statute,21 the FMO should have taken into account the clear
implications of NFP A 921 on the past arson analyses employed in the Wilingham case and in
other convictions where people were imprisoned and/or awaiting execution for arson, murder
and other crimes based on those long- discredited , unreliable forms of arson analysis
Specifically, the FMO should have recognized the danger of the unreliable methods previously
used by fire investigators , educated the court system about that uneliabilty, and acted
affirmatively to ensure that such unreliable analyses were no longer performed.

The Fire Marshal's Office should have notified Texas prosecutors, courts, the
Board of Pardons and Parole, and the Governor s Office about the implications
of NFP A 921.

Finally, the FMO should have notified Texas prosecutors , courts , the Board of Pardons and
Parole , and the Governor s Office about the substantial change in acceptable forensic arson
analysis brought about by NFP A 921. It should have done so at the time that the FMO adopted
the tenets of NFP 921; when it concluded that the analysis offered by its agents in the
Wilingham case and other investigations were unreliable; and/or when it realized the
uneliability of each of the other " folklore- based" forms of ascertaining whether a specific fire
had been set.

Again , the FMO has a statutory duty under Texas law to give to the appropriate
prosecuting attorney all evidence and relevant information that has been obtained" when he
believes that " there is sufficient evidence to charge a person with arson , attempted arson
conspiracy to commit fraud , or another offense related to (a) matter under investigation. 23 As
such , it is perfectly clear that the FMO has a statutory duty to the prosecution in criminal matters

20
November 13 2009 meeting of the Texas Criminal Justice Integrity Unit
-Chtt://www. cca. courts. state. tx. us/tcjiu/meetings. asp:: (last visited Aug. 19 2010).
21 See
Tex. Gov t Code ~~ 417. 004 , 417. 007 (setting out investigatory and prosecution-related duties of the FMO).
22 Again , this allegation is merely a vehicle through which to uncover and
reinvestigate convictions based upon
faulty arson science. As referenced above , this allegation could have been brought in the name of any number of
inmates in Texas prisons. For instance , Alfredo Guardiola was convicted of arson the very same year the FMO
began to use NFPA 921. Fire and Innocence Texas Monthly, Dec. 2009.
23 Tex. Gov
t Code ~ 417. 007 (emphasis added).
Benjamin N. Cardozo School of Law , Yeshiva University
 related to fires , specifically when arson or related prosecutions are being pursued , and when
convictions had been secured.

Additionally, the FMO' s fire investigators - sworn peace offcers - know or should know of
prosecutors ' primary duty, which is " not to convict , but to see that justice is done. 24 This duty
is well- known , and also memorialized in the Texas Code of Criminal Procedure. 25 Likewise
FMO fire investigators know or should know of prosecutors ' duty to hand over exculpatory
evidence to the defense. 26 This gives rise to an implicit , concomitant duty on the part of the
FMO to inform prosecutors of exculpatory information - and clearly, the publication of NFP A
921 and research establishing the unreliability of past forms of analysis exemplifies such
information.

The FMO' s duty to inform the Texas criminal justice system of having previously provided
unreliable evidence to it is not , however , limited to that duty identified above. As a matter of
professional responsibility, the FMO should have anticipated that its failure to alert the criminal
justice system as to its past flawed analyses would result in the conviction and incarceration of
potentially innocent defendants , and that it had a duty to inform those officials empowered to act
upon such information in order to dispense justice. In fact , the American Society of Crime Lab
Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional
Responsibility for Crime Laboratories and Forensic Scientists codified this longstanding ethical
principle when it set out that " will take appropriate action if there is
(l)aboratory management

potential for, or there has been , a miscarriage of justice due to circumstances that have come
to light incompetent practice or malpractice.

In light of all this , it is unreasonable that the FMO did not , in the very least , alert prosecutors to
NFPA 921 and the uneliability of past testimony and analyses they may have been provided.
Indeed , given the import of their past uneliable analyses , the FMO should have alerted the
courts , the Board of Pardons and Parole and the Governor of the same fact. Clearly, the FMO'
specialized expert testimony is given great weight and is reasonably relied upon by the criminal
justice system. The fact that past testimony and analyses that the FMO provided the court
system have been proven unreliable is critically important to such parties ' decisions about
pardons , parole and even executions. As a result , the FMO' s failure to inform the Texas criminal
justice system of NFP A 921 recklessly created the potential for injustice. In the Wilingham and
perhaps other cases , the Board of Pardons and Parole and the Governor were forced to make
significant decisions about life and death without all of the facts in front of them. Recognizing
this , the FMO should have notified the Texas criminal justice system that so many convictions
were potentially unsound so that past cases could be effectively reviewed to correct any
miscariages of justice.

A Precedent for Review

An excellent precedent in this regard is the FBI's response to the discovery that testimony in
thousands of cases on comparative bullet lead analysis (CBLA) was specious. As early as 2000

24 Tex.
Code Crim. Proc. art. 2. 01.
Id.
26 Tex. Gov
t Code 417. 006; See State v. Moore 240 S. W.3d 324 327 (Tex. App. Austin 2007).
27 ASCLD/Lab Guidmg Principles of Professional Responsibilty for Crime Laboratories and Forensic Scientists
-Chtt://www. ascld- lab. orglabout us/guidingprinciples. html:: (last visited Aug. 19 2010) (emphasis added). While
these principles are not binding on forensic scientists , they are particularly informative , as they "provide a
framework for describing ethical and professional responsibilities in the forensic laboratory community.
Benjamin N. Cardozo School of Law , Yeshiva University
 the FBI Laboratory sought an impartial scientific assessment of its CBLA work. The National
Research Council issued its report on CBLA in 2004. In a 2005 email to FBI Robert Mueller
FBI Lab Director Dwight Adams noted that:
In the end , it did not matter that we were using the best available technology.
What mattered was our inability to determine the significance of our comparisons.
We cannot afford to be misleading to a jury or state that two samples are
indistinguishable , but not be able to state the significance of that fact or what it
means... We plan to send a letter to all prosecutors that utilized this
technology. . . We plan to discourage prosecutors from using our previous results
in future prosecutions.
Recognizing its duty to inform the court system of its erroneous or misleading testimony, the FBI
worked with the Joint Task Force on CBLA to review closed cases where CBLA testimony
was given. As a result , the FBI notified prosecutors and judges in individual cases where
misleading CBLA testimony contributed to convictions , and the Task Force vetted and
responded to cases as the FBI released them and ensured that attorneys handling the cases had
access to legal and forensic expertise to weigh the impact of false or misleading CBLA
testimony.

The FMO Investigators ' Negligence

The second count of negligence upon which our allegation is based centers on the FMO'
Investigators. First , the FMO' s investigators conducted investigations that did not conform to
the standard of practice in place at the time.

The Commission engaged one of the nation s top fire investigation experts , Dr. Craig Beyler for
its investigation of the fire investigation questions central to this allegation. 30 Dr. Beyler
Report clearly sets out the standard of practice at the time: " (fJor purposes of this analysis(,) the
standard of care before NFP A 921 was taken from fire investigation texts that were published
before NFP A 921... as well as from the articles published in The Fire and Arson Investigator

the 1980s.
31 Dr. Beyler continues: " (i)t is.. .important to distinguish the community standard of

care from the norms as practiced in the field. In many instances(, ) the norms are well below the
standard of care. That is(,) fire investigation as actually practiced fell well short of the teachings
of texts, courses, and articles of the day.

Dr. Beyler concludes that in his expert opinion:

The investigations of the Wilis and Wilingham fires did not comport with... the
standard of care expressed by fire investigation texts and papers in the period

28 FBI Emails Outline Concern Washington Post, Nov. 2007 , -chtt://www. washingtonpost.com/wp-
srv/content!nation/investigative!FBIEmails. (last visited Aug. 19 2010).
29 The Joint
Task Force on CBLA was formed by the Innocence Project and the National Association of Criminal
Defense Lawyers.
30 Per the resume he
submitted to you with his report , Dr. Beyler is the Technical Director of Hughes Associates
where he is responsible for technical quality of fire protection design, research and development projects. He
currently Chairman of the International Association of Fire Safety Science. He has been a member of the National
Fire Protection Association since 1987. He holds inter alia a BS in Fire Protection Engineering, an MSc in Fire
Safety Engineering and a PhD in Engineering Science. For further qualifications , please refer to his resume , which
he attached as Appendix A of his Report infa n. 41.
31 p. 2
, Analysis of the Fire Investigation Methods and Procedures Used in the Criminal Arson Cases against Ernest
Ray Wilis and Cameron Todd Wilingham , August 2009 (emphasis in original).
32 Id
(emphasis added).
Benjamin N. Cardozo School of Law , Yeshiva University
 ," ," ,"

1980- 1992. The investigators had poor understandings of fire science and failed
to acknowledge or apply the contemporaneous understanding of the limitations of
fire indicators. Their methodologies did not comport with the scientific method
or the process of elimination. A finding of arson could not be sustained based
upon. . . the standard of care expressed by fire investigation texts and papers in the
period 1980- 1992.

This is not a question of whether obscure scientific literature questioning the foundation of arson
investigation had yet reached the investigation community. Information regarding the
established uneliability of traditional folklore- based" arson analyses was readily available to
investigators - through courses and other means of information sharing within the arson
investigation community, such as continuing education , conferences , reports , and trade
magazines. 34 These investigators should have availed themselves of such information, especially
given the gravity of their analyses. 35 As one Commissioner put it in a previous discussion of the
issues in this allegation , this is a case of " professional ignorance.
,,36 And although the
Commission has clearly indicated that it is not bound by the advisory policies and procedures it
has adopted , it is worth noting that those policies and procedures state that (a)n act or omission
was negligent if the actor should have been but was not aware of an accepted standard of
practice required for a forensic analysis.

Mark Goodson of Goodson Engineering, one of Texas s most respected fire investigation
experts 38 agrees with Dr. Beyler. As a fire expert with decades of experience with the Texas fire
investigation community, he wrote in a letter dated September 23 , 2009 to the Commission
first off want to commend Dr. Beyler for an excellent report. His findings, in my view, are
accurate. Moreover, the report agrees with the previous reports by both Lenitini , Carpenter et al.
and Dr. Hurst." He also notes in a letter to be submitted to you that many of the indicators the
investigators used in the Wilingham case were known to be wrong at the time. Crazed glass
V" patterns and pour patterns had all been discredited as arson indicators at the time of the
Wilingham investigation.

As Investigator Manuel Vasquez (Vasquez) was at the time of his testimony a six year veteran of
the FMO , certified Texas arson investigator , graduate of and instructor at the Dallas County
Sheriffs and Fire Academies and student at the annual Texas A & M fire training school , he
clearly knew - or at the very least should have known - that the indicators upon which he relied
in determining arson were flawed.

33
Id at 51.
34 See
The Fire and Arson Investigator; nn. 6 , 9 , 13 , 17 , 19 60 and 66 , Analysis of
the Fire Investigation Methods and Procedures Used in the Criminal Arson Cases against Ernest Ray Wilis and
Cameron Todd Wilingham , August 2009.
35 This sentiment has been
codified in the International Association of Arson Investigators Code of Ethics: " I wil
regard it my duty to know my work thoroughly. It is my further duty to avail myself of every opportnity to learn
more about my profession. International Association of Arson Investigators Code of Ethics
-Chtt://firearson. com/l- Membership/l- Code-of- Ethics. aspx:: (last visited Aug. 19 , 2010).
36 Dr. Sarah Kerrigan
, July 23 , 2010 Commission Meeting.
37 p. 4
, Texas Forensic Science Commission Policies and Procedures , adopted July 23 2010 (emphasis added).
38 Mark
Goodson is an infmitely qualified arson expert. He runs an engineering consulting fIrm and forensic lab that
analyzes 400- 500 fires a year. He is a licensed engineer in ten states and holds a multitude of degrees and
certificates in engineering and arson science.
Benjamin N. Cardozo School of Law , Yeshiva University
Some might claim that since other arson investigators in Texas were also using the same
procedures , it could not be negligent for Vasquez in the Wilingham case and Investigators
Brown and Cheever in the Wilis case to have continued using unreliable methods of fire
analysis despite their having been clearly discredited. We think the Commission wil find it
instructive that Texas law does not support such an assertion. " The fact that a person conducts
himself in a paricular maner which is usual and customary does not foreclose the question of
ordinary care under the paricular circumstances. It is entirely possible that customary practices
might of themselves be unreasonable or include negligence. 39 Here , simply because " everyone
else was doing it" does not make the investigators ' actions reasonable or not negligent. The
FMO' s fire investigators in fact knew - or should have known - that such customary practices
were unreliable and thus improper for advancing to prosecutors (and , through them , to the Texas
criminal justice system) for considering whether a prosecution should proceed , a conviction
would be just , or a secured conviction was reliable.

In sum and in addition to the negligence of the FMO in failng to correct its testimony and
inform the Texas criminal justice system of the uneliability of the traditional " folklore " based
analyses and testimony that had historically been used , the FMO Investigators in the Wilis and
Wilingham cases were negligent. They conducted investigations that did not conform to fire
investigators ' accepted standard of practice at the time. Alternatively, the standard they followed
was itself negligent and the investigators should have known that.

Investigator Vasquez s Patently Inappropriate Forensic Testimony

The testimony of the FMO' s investigator in the Wilingham case was also negligent, and/or an
act of misconduct , in that he stated conclusions that were patently beyond his expertise , and even
his ability to know. Specifically, Vasquez s testimony as to the credibility and intent of
Wilingham were outrageous and completely inappropriate for a fire investigator. He noted in
his testimony that when speaking with Mr. Wilingham: " I listened to him. I never questioned
him... He just talked and he talked , and all he did was lie... (p)ure fabrication. 40 Vasquez
testified that , in his opinion , Wilingham s injuries were self- inflicted. He was asked (b)ased
upon your investigation and your examination of the scene and your conclusions , can you tell
what the arsonist intended to do by setting this fire?" He responded (t)he intent was to kil the
little girls.
42 As Professor Giannelli of Case Western Reserve University43 points out , Vasquez
was "testifying totally beyond his expertise.. .it is improper expert testimony and intrudes upon
the jury s function. 44 And even if this kind of testimony was regularly permitted at the time , it
goes far beyond what is allowable according to contemporaneous and common law evidence
rules.

Simply put , Vasquez s forensic expert testimony was patently inappropriate and therefore
amounted to professional negligence or misconduct.

39 Air
Control Engineering, Inc. v. Hogan 477 S. 2d 941 946 (Tex. Civ. App. 1972).
40
Testimony of Vasquez , Tr. , part 1 , p. 260 , lines 18- 22.
41 Id
at 262 , lines 17-23.
42 Tr.
, par 2 , p. 54 , lines 6- 11.
43 Professor Gianell , the Albert J. Weatherhead II & Richard W. Weatherhead Professor of Law at Case Western
Reserve University School of Law , is a preeminent legal scholar , with an emphasis in forensics. He has written
extensively in the field of evidence and criminal procedure , especially on the topic of scientific evidence. He holds
inter alia a MSc in Forensic Science , an LLM and a JD.
44 Letter to the
Commission from Professor Giannell dated August 17 , 2010.
Benjamin N. Cardozo School of Law , Yeshiva University
 . ,,

In fact , it seems that Vasquez may have laid the groundwork for his improper testimony by
sprinkling throughout it a seemingly formulaic set of statements to establish his expertise. (This
despite the fact that he employed wholly discredited methods of arson analysis to arrive at his
findings. ) Vasquez told the jury that " (t)he fire tells a story. I am just the interpreter; 45 " the fire
does not lie. It tells me the truth; 46 and " the fire , itself, tells me that it's a very aggressive
fire.. .it was not a planned fire 47 while providing the jury with his improper forensic testimony,
which purported to tell the jury how to regard Mr. Wilingham s credibility and intent. The use
of this set of mystical statements throughout his improper testimony raises additional concerns
and seems so formulaic as to perhaps have been used in previous cases in which he also provided
similar inappropriate testimony. This begs Commission investigation into his past cases
paricularly considering that Vasquez exclusively relied on methods of arson analysis he knew or
should have known were discredited and unreliable , and most importantly, found that fires had
been set in "with the exception of a few, most all of' the 1200 to 1500 fires he investigated.

The Texas Forensic Science Commission s Duty to Investigate

Pursuant to the Commission s authorizing statute , the Commission shall.. .investigate , in a

timely manner, any allegation of professional negligence or misconduct that would substantially
affect the integrity of the results of a forensic analysis conducted by an accredited laboratory,
aCIIty, or entIty.

Accordingly, it seems abundantly clear that you have a duty to investigate the facts and
circumstances underlying this allegation. Complainants must only come to you with a colorable
allegation of negligence , and per the statute , you must investigate those allegations. Indeed , the
Commission - in its previous iterations - seemed to have recognized this fact , and was
conducting the type of thorough yet focused investigation that this allegation required. The
agenda for the hastily cancelled October 2 , 2009 meeting, which included Commission
questioning of its expert , and considering the other entities from which it should seek
information , exemplifies that course.

But the Commission s recent attempts to look into the WilinghamWills allegation have fallen
far short of that mark. Indeed , it was patently alaring that the Investigation Panel Chair
Commissioner Bradley, sought Commission approval to proceed with drafting a full Commission
report based on the incomplete investigation it had conducted. This was especially true given
that the only additional consideration given to this allegation since Mr. Bradley s installation as

45 Tr.
, part 1 , p. 244 , lines 8-
46 Id
lines 11- 12.
47 Tr.
, part 2 , p. 72 , lines 14- 16.
48 Tr.
, part 1 , p. 227 , lines 24- 25 and p. 228 , lines 1- 11 state as follows:

Q: And how many fires have you investigated since becoming a certified fire arson investigator?
A: Perhaps in the range of 1200 to 1500 fires.
Q: Of these 1200 to 1500 fires , how many turned out to be arson in your opinion?
A: With the exception ofa few , most all of them.
Q: And how many - again , based on your experience , how many arson fires that you investigated involved injuries
or death?
A: Unfortnately, fires injure a lot of people , kil a lot of people. It' s about 50 percent.
Q: How many trials have you testified in , Manuel?
A: Twenty- five or thirt trials.
49 Tex
Code Crim. Proc. art. 38. 0 I (4)(a)(3) (emphasis added).
Benjamin N. Cardozo School of Law , Yeshiva University
 Chairman was held behind closed doors , without the public , the media , or the full Commission
having access to those proceedings. The Investigation Panel came to the July 2010 meeting with
a recommendation that the Commission find that the FMO investigators acted in accordance with
the standard of practice at the time despite not having clearly determined what that standard
practice was. Moreover , we respectfully submit that it seems the Investigation Panel did not
fully address critically important components of our allegation. We strongly encourage the
Commission to , as a whole , properly - and publicly - investigate the allegation before it arives
at a conclusion. Anything short of this wil surely undermine public confidence in the
Commission s ultimate findings and recommendations in the wake of its investigation.

Allegations are Diferent from Prosecutions

Certain statements made in recent meetings clearly suggest that the Commission is at times
considering allegations as if they were prosecutions of the persons involved in the allegation.
Let us be clear that this allegation is not intended to be, nor is it in fact, a prosecution or
indictment of any individual. While finding negligence or misconduct is fudamental to any
allegation the Commission would consider , the point of the Commission s work is not to punish
an individual , but to identify action(s) that represent professional negligence or misconduct in
order to enable the state - through the Commission and otherwise - ensure the integrity of
forensic evidence , as well as justice , in the wake of such findings.

This Investigation and Accreditation

We have written to you previously on the point of the scope of the Commission s jurisdiction
and whether this allegation rightly falls therein , and trust that you wil consider those points in
50 There is
this specific instance. , however , one additional point we would like to make on that
question.

The Commission has already unanimously accepted this allegation as a proper subject of its
purview. That acceptance has been affrmed at many points since that time , and is clearly
entirely within the Commission s mission and powers. Yet , curiously, some continue to raise the
question of whether the Commission has jurisdiction to consider this allegation. There
therefore one last aspect of the jurisdiction question that - in addition to the writings that you
have already received from the Innocence Project and others on this point, all of which merit
your full consideration - we would like to bring to your attention.

As established in the previous memoranda that have been submitted to you, clearly
Texas law
leaves significant discretion to the Commission regarding the scope of its jurisdiction. 1 The 5
Legislature , by specifically referring to " facilities " in the Commission s enabling statute
provided you with a broad range of appropriate forensic subjects for Commission investigation
and the discretion to determine what that includes. At your July 23 2010 meeting, Pat Johnson
Director of the Texas DPS Lab , noted that under the DPS accreditation statute , 52 the Legislature
directed that " accreditation" refers only to " laboratories " or " entities. " Under the Commission
enabling statute , however , the Legislature did not limit you to those two types of accredited

50 See
IP Letter and Memorandum to the Commission dated July 20 , 2010; Statement Regarding " Memorandum on
the Jurisdiction of the Forensic Science Commission (FSC)" dated July 19 2010.
51 See
Id As long as a Commission does not take on matters clearly beyond its scope , its jurisdictional decisions
are given great deference. See, e.g., Southwestern Bell Telephone Co. v. Combs 270 S. W.3d 249 261 (Tex. App.

Amarilo 2008) (internal citations omitted).

52 Tex. Gov
t Code ~ 411.0205.
Benjamin N. Cardozo School of Law , Yeshiva University
 ," -" ,"

bodies. The Commission s enabling statute includes not just the " laboratories " and " entities
included in the DPS accreditation statute , but also includes a new category of forensic bodies
facilties. This term facilities " does not exist elsewhere in Texas statutory law with regard
to forensic bodies , and the term is not defined in your enabling statute. The Legislature therefore
clearly intended for the Commission to have the discretion to determine what additional forensic
bodies are properly subject to its jurisdiction. By including that new and undefined term , the
Legislature must be understood to have anticipated instances where it would be appropriate for
the Commission to look into the acts of a forensic organization that is not like any other
considered under Texas statute to be " accredited.

If your jurisdictional analysis so requires , the FMO is clearly among those bodies appropriately
considered an " accredited facility" by the Commission. The FMO' s Forensic Arson Laboratory,
housed within a division of the FMO; and the " Texas State Fire Marshal' s Forensic Arson
Laboratory" appears on the " Current List of DPS Accredited Labs from Texas , 8/6/2009.
That accredited laboratory - clearly a covered entity - is par of its parent facilty, the FMO, and
relies upon that parent facility to properly function as an accredited lab (e. , the proper
collection of fire debris evidence).

The Legislature thus left to the Commission to determine what specifically constitutes an
accredited facility" for the puroses of your jurisdiction. Given the clear statements of the chief
sponsors of your enabling statute , Senators Whitmire and Hinojosa, that the statute is intended to
broadly cover forensic practice , 54 and the important questions of the integrity of forensic results
raised by the arson responsibilities of the FMO , it seems clear that the FMO would be properly
considered an " accredited facility " by the Commission s for the purose of ensuring justice and
the integrity of forensic evidence in the Texas criminal justice system.

Conclusion

The urgency with which you must investigate is underscored by Vasquez s own testimony. As
he put it , he had investigated " in the range of 1200 to 1500 fires " since becoming a certified fire
investigator. 55 " With the exception of a few , most all of them " turned out to be arson in his
opinion. 56 Given the FMO' s failure to inform the Texas criminal justice system of the
unreliability of the old and fully discredited " folklore " based arson analyses it had relied upon to
assert that fires had been set - as well as Vasquez s role within the FMO , his teaching
53
Curent List ofDPS Accredited Labs from Texas , 8/6/2009,
-chtt://www. txdps. state. tx. us/criminal law - enforcement/crime laboratory /list labs _accredited texas. pdb (last
visited Aug. 17 2010).
The commission , (Lawrence Coleman , spokesman for Sen. John Whitmire ) said was set up to be a broad
review , to take on these problems and let us know what we needed to do to introduce new legislation. The senators
goal was to look at whether appropriate forensic science methods were being used and that crime labs were
following best practices. At time of Perry dismissals, authority of Texas forensic panel was at issue Fort- Worth
Star Telegram , Oct. 09 (emphasis added).
The purose of the commission was... to scrutinize the methodology used in cases , so if there s a mistake we
could learn from the mistake and make the system better. They re there to review the evidence , the technology and
whatever methods were used to convict the person like junk science... The criminal justice system has to have the
trust of the public to make sure we re convicting people who are guilty, especially when they re sentenced to
death. They re just doing their job to make sure the methods used at the time were valid. It' s so we don t make
another mistake in using faulty evidence. Sen. Juan Chuy " Hinojosa , D- McAllen Texas Forensic Science
Commission questioned Corsicana Daily Sun , Oct. 09 (emphasis added).
55 Tr.
, p. 227- , lines 24-
, part 1 , 1.
56 Id.
at 228 , lines 2-
Benjamin N. Cardozo School of Law , Yeshiva University
 responsibilities to arson investigators throughout the state, and the impropriety of the
investigative methods he used and the testimony he provided - it seems abundantly clear that
there were , are , and wil continue to be many other individuals wrongfully convicted and
incarcerated , and even possibly executed , for arson-related crimes if the Commission does not
properly investigate and act upon this allegation.

We hope that you wil continue investigate fully and publicly the specific allegations of
to
professional negligence discussed above. As always , than you for your time and attention to
this important issue. We would be more than pleased to share more information with any and all
of you , at your request.

Sincerely,

i/
Bary C. Scheck ,
)A,;

Esq. Stephen Saloom , Esq.

Co- Director Policy Director

57 See
pp. 10- , Letter to the Commission from Mark Goodson dated Sept. 23 , 2009 for specific case examples.
Benjamin N. Cardozo School of Law , Yeshiva University
897 S.W.2d 351

Judges, Attorneys and Experts

Court of Criminal Appeals of Texas,
En Banc.
Cameron Todd WILLINGHAM, Appellant,
v.
The STATE of Texas, Appellee.

No. 71544.
March 22, 1995.

Defendant was convicted of capital murder by murdering more than one

person during same criminal transaction after jury trial in the 13th Judicial
District Court, Navarro County, Kenneth A. Douglas, J. Defendant appealed,
and the Court of Criminal Appeals, White, J., held that: (1) jury could find
that defendant would commit criminal acts of violence that would constitute
continuing threat to society; (2) trial court properly denied defendant's
motion for change of venue; (3) trial court properly refused to admit
evidence offered by defense to impeach testimony of witness for state; and
(4) trial court properly refused to charge jury on effect of parole in
punishment phase.

Affirmed.

Clinton, J., filed opinion concurring in the result in which Maloney, J.,
joined and Baird, J., joined in part.

Overstreet, J., filed opinion concurring in the result.

West Headnotes

[1] KeyCite Citing References for this Headnote

350H Sentencing and Punishment

350HVIII The Death Penalty
350HVIII(E) Factors Related to Offender
350Hk1720 k. Dangerousness. Most Cited Cases
(Formerly 203k357(6))

Jury could find in capital case that defendant would commit criminal acts
of violence that would constitute continuing threat to society; defendant
saturated his house with combustible liquid, ignited house, and left his three
children in the burning house, defendant had been convicted of numerous
offenses and failed all attempts of rehabilitation, and defendant committed
other violent acts apart from his criminal convictions.Vernon's Ann.Texas
C.C.P. art. 37.071, 2(b)(1).

[2] KeyCite Citing References for this Headnote

110 Criminal Law

110XXIV Review
110XXIV(M) Presumptions
110k1144 Facts or Proceedings Not Shown by Record
110k1144.13 Sufficiency of Evidence
110k1144.13(7) k. Particular Issues or Elements. Most Cited
Cases

In determining whether evidence is sufficient to support jury's answer to

issue of defendant's future dangerousness presented in punishment phase of
capital murder trial, Court of Criminal Appeals views evidence in light most
favorable to verdict to determine whether rational trier of fact could have
found elements of future dangerousness beyond reasonable doubt. Vernon's
Ann.Texas C.C.P. art. 37.071, 2(b)(1).

[3] KeyCite Citing References for this Headnote

350H Sentencing and Punishment

350HVIII The Death Penalty
350HVIII(G) Proceedings
350HVIII(G)2 Evidence
350Hk1750 k. In General. Most Cited Cases
(Formerly 203k358(1))

Any evidence adduced at guilt/innocence and punishment phases of

capital murder trial can be used by jury when considering future
dangerousness. Vernon's Ann.Texas C.C.P. art. 37.071, 2(b)(1).

[4] KeyCite Citing References for this Headnote

350H Sentencing and Punishment

350HVIII The Death Penalty
350HVIII(G) Proceedings
350HVIII(G)2 Evidence
 350Hk1772 k. Sufficiency. Most Cited Cases
(Formerly 110k1208.1(6))

Often circumstances of offense alone are enough in capital case to sustain

affirmative answer to special issue of future dangerousness. Vernon's
Ann.Texas C.C.P. art. 37.071, 2(b)(1).

[5] KeyCite Citing References for this Headnote

350H Sentencing and Punishment

350HVIII The Death Penalty
350HVIII(G) Proceedings
350HVIII(G)2 Evidence
350Hk1755 Admissibility
350Hk1762 k. Other Offenses, Charges, or Misconduct. Most
Cited Cases
(Formerly 110k1208.1(6))

Defendant's prior criminal record is relevant to future dangerousness issue

in capital case. Vernon's Ann.Texas C.C.P. art. 37.071, 2(b)(1).

[6] KeyCite Citing References for this Headnote

350H Sentencing and Punishment

350HVIII The Death Penalty
350HVIII(E) Factors Related to Offender
350Hk1720 k. Dangerousness. Most Cited Cases
(Formerly 110k1208.1(6))

In addition to circumstances of capital case, criminal history and

reputation evidence are probative of future dangerousness. Vernon's
Ann.Texas C.C.P. art. 37.071, 2(b)(1).

[7] KeyCite Citing References for this Headnote

350H Sentencing and Punishment

350HVIII The Death Penalty
350HVIII(G) Proceedings
350HVIII(G)4 Determination and Disposition
350Hk1789 Review of Proceedings to Impose Death Sentence
350Hk1789(5) k. Scope of Review. Most Cited Cases
(Formerly 110k1134(3))
 Court of Criminal Appeals could not review capital murder defendant's
claim that evidence was insufficient to support finding that mitigating
circumstances would not warrant life sentence; defendant failed to point to
any mitigating factors which would persuade jury to answer special issue in
his favor and render life sentence, no mitigating circumstances were
apparent from record, and no authorities were cited. Vernon's Ann.Texas
C.C.P. art. 37.071, 2(e); Rules App.Proc., Rule 74(f).

[8] KeyCite Citing References for this Headnote

110 Criminal Law

110IX Venue
110IX(B) Change of Venue
110k123 Grounds for Change
110k126 Local Prejudice
110k126(2) k. Particular Offenses. Most Cited Cases

Trial court properly denied defendant's motion for change of venue in

capital case, even though district attorney stated on television that possible
motive for defendant burning his house down with his three children inside
was that the children were interfering with [defendant's] beer drinking and
dart throwing; newspaper articles offered by defendant demonstrated
nothing more than accurate reporting of newsworthy occurrence, and neither
newspaper nor television reporting was widespread.

[9] KeyCite Citing References for this Headnote

92 Constitutional Law
92XXVII Due Process
92XXVII(H) Criminal Law
92XXVII(H)4 Proceedings and Trial
92k4559 k. Jurisdiction and Venue. Most Cited Cases
(Formerly 92k259)

110 Criminal Law KeyCite Citing References for this Headnote

110IX Venue
110IX(B) Change of Venue
110k123 Grounds for Change
110k126 Local Prejudice
110k126(1) k. In General. Most Cited Cases
 Change of venue is proper and consistent with principles of due process
when defendant demonstrates inability to obtain impartial jury or fair trial at
place of venue. U.S.C.A. Const.Amends. 5, 14.

[10] KeyCite Citing References for this Headnote

110 Criminal Law

110IX Venue
110IX(B) Change of Venue
110k123 Grounds for Change
110k126 Local Prejudice
110k126(1) k. In General. Most Cited Cases

Change of venue is the remedy to jury prejudice resulting from extensive,

widespread inflammatory news coverage.

[11] KeyCite Citing References for this Headnote

110 Criminal Law

110IX Venue
110IX(B) Change of Venue
110k123 Grounds for Change
110k126 Local Prejudice
110k126(1) k. In General. Most Cited Cases

Mere fact that crime was publicized in news media does not establish
prejudice or require change of venue per se; rather, test is whether outside
influences affecting community's climate of opinion as to defendant are
inherently suspect.

[12] KeyCite Citing References for this Headnote

110 Criminal Law

110IX Venue
110IX(B) Change of Venue
110k123 Grounds for Change
110k126 Local Prejudice
110k126(1) k. In General. Most Cited Cases

110 Criminal Law KeyCite Citing References for this Headnote

110IX Venue
110IX(B) Change of Venue
 110k129 Application
110k134 Affidavits and Other Proofs
110k134(1) k. In General. Most Cited Cases

In order to prevail in motion to change venue, defendant must prove that

publicity about case is pervasive, prejudicial, and inflammatory.

[13] KeyCite Citing References for this Headnote

110 Criminal Law

110XX Trial
110XX(F) Province of Court and Jury in General
110k733 Questions of Law or of Fact
110k737 Issues of Fact in General
110k737(2) k. Place of Offense. Most Cited Cases

When trial court is presented with motion to change venue, trial judge
must act as fact finder with regard to issue presented.

[14] KeyCite Citing References for this Headnote

110 Criminal Law

110XXIV Review
110XXIV(N) Discretion of Lower Court
110k1150 k. Change of Venue. Most Cited Cases

Court of Criminal Appeals will affirm trial court's judgment regarding

motion to change venue absent evidence of abuse of discretion.

[15] KeyCite Citing References for this Headnote

410 Witnesses
410IV Credibility and Impeachment
410IV(C) Interest and Bias of Witness
410k373 k. Laying Foundation for Impeaching Evidence. Most
Cited Cases

Trial court properly refused to admit evidence offered by defense in capital

case to impeach testimony of witness for state, even though defendant
claimed that witness testified that defendant admitted committing offense
because witness hoped for early release from prison; no nexus was
established between admission made by defendant to witness and witness'
alleged hopes of early release, and trial counsel failed to lay proper predicate
for impeaching witness.

[16] KeyCite Citing References for this Headnote

410 Witnesses
410IV Credibility and Impeachment
410IV(A) In General
410k311 k. Grounds of Credibility in General. Most Cited Cases

Impeachment of a witness means adducing proof that witness is

unworthy of belief or credit.

[17] KeyCite Citing References for this Headnote

410 Witnesses
410IV Credibility and Impeachment
410IV(C) Interest and Bias of Witness
410k363 Interest as Ground of Impeachment in General
410k363(1) k. In General. Most Cited Cases

Credibility of witness may be attacked, inter alia, by evidence that witness

is slanting testimony against or in favor of party as result of personal
interest or bias in cause. Rules of Crim.Evid., Rule 612(b).

[18] KeyCite Citing References for this Headnote

410 Witnesses
410IV Credibility and Impeachment
410IV(C) Interest and Bias of Witness
410k373 k. Laying Foundation for Impeaching Evidence. Most
Cited Cases

When impeaching witness, specific connection between witness' testimony

and cause, disclosing actual bias or motive, must first be established, and
nexus must be demonstrated by laying proper foundation.

[19] KeyCite Citing References for this Headnote

410 Witnesses
410IV Credibility and Impeachment
410IV(C) Interest and Bias of Witness
 410k373 k. Laying Foundation for Impeaching Evidence. Most
Cited Cases

To lay proper predicate for impeachment, witness should be asked about

any possible interest or bias he may have before there is attempt otherwise
to prove interest or bias.

[20] KeyCite Citing References for this Headnote

410 Witnesses
410IV Credibility and Impeachment
410IV(C) Interest and Bias of Witness
410k373 k. Laying Foundation for Impeaching Evidence. Most
Cited Cases

In laying proper predicate for impeachment on bias or personal interest

grounds, witness must first be informed as to circumstances supporting
claim of bias or interest and must be given opportunity to explain or deny
such circumstances. Rules of Crim.Evid., Rule 612(b).

[21] KeyCite Citing References for this Headnote

410 Witnesses
410IV Credibility and Impeachment
410IV(C) Interest and Bias of Witness
410k373 k. Laying Foundation for Impeaching Evidence. Most
Cited Cases

When party does not lay proper predicate for impeaching witness, it is not
error to refuse to allow admission of such testimony.

[22] KeyCite Citing References for this Headnote

110 Criminal Law

110XX Trial
110XX(G) Instructions: Necessity, Requisites, and Sufficiency
110k790 k. Matters of Law in General. Most Cited Cases

Trial court properly refused to charge jury on effect of parole in

punishment phase of capital case since parole eligibility is not proper
consideration for jury's deliberation on punishment. Vernon's Ann.Texas
C.C.P. art. 37.071, 2(f)(4).
[23] KeyCite Citing References for this Headnote

350H Sentencing and Punishment

350HVII Cruel and Unusual Punishment in General
350HVII(E) Excessiveness and Proportionality of Sentence
350Hk1480 k. In General. Most Cited Cases
(Formerly 110k1213.8(1))

For purposes of Eighth Amendment, mitigating circumstances are those

circumstances of defendant's background and character that will support
belief, long held by this society, that defendants who commit criminal acts
that are attributable to such circumstances may be less culpable than
defendants who have no such excuse. U.S.C.A. Const.Amend. 8.

[24] KeyCite Citing References for this Headnote

350H Sentencing and Punishment

350HII Sentencing Proceedings in General
350HII(F) Evidence
350Hk307 Admissibility in General
350Hk308 k. In General. Most Cited Cases
(Formerly 110k986.2(1))

Evidence of mitigating circumstances, i.e., evidence that juror might

regard as reducing defendant's moral blameworthiness, may be considered
by jury when deliberating at punishment. Vernon's Ann.Texas C.C.P. art.
37.071, 2(f)(4).

*353 David Martin, Greg White, Waco, for appellant.

*354 Patrick C. Batchelor, Dist. Atty., Corsicana, Jim Vollers, Austin, Robert
Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION
WHITE, Judge.

Appellant Cameron Todd Willingham was convicted on August 21, 1992 of

capital murder by murdering more than one person during the same criminal
transaction. Tex. Penal Code Ann. 19.03(a)(6)(A). Two special issues were
submitted to the jury under Tex.Code Crim. Proc. Ann. art. 37.071 2(b)(1)
and 2(e), and following the jury's verdict of guilty, the trial court
sentenced appellant to death. Direct appeal to this Court is
automatic. Tex.Code Crim.Proc.Ann. art. 37.071 2(h). We will affirm.

Appellant brings four points of error for this Court to review. In point of
error number one, appellant contends the trial court erred in refusing to
grant his Motion for Change of Venue, in light of inflammatory statements
made by the Navarro County District Attorney. Appellant asserts in his
second point of error that the trial court erred in refusing to admit evidence
offered by the defense to impeach the testimony of a witness for the State.
In his third point of error, appellant maintains the trial court erred in its
charge to the jury during the punishment phase of the trial by failing to
instruct the jury on the effect of parole, as parole would qualify as a
mitigating circumstance under the facts of this case. Appellant contends, in
point of error number four, that the evidence is insufficient to support the
jury's answers to the special issues submitted in the punishment phase of
the trial, particularly: (a) that the evidence is insufficient to support the
finding that appellant is a continuing threat to society, and (b) that the
evidence is insufficient to support a finding that mitigating circumstances
would not warrant a life sentence. Appellant does not challenge the
sufficiency of the evidence to support his conviction; therefore, the facts of
the offense will be discussed only in reference to the error alleged in point of
error number four.

Appellant contends in his fourth point of error that the evidence is

insufficient to support the jury's answers to the special issues submitted in
the punishment phase of the trial. Although appellant does not argue that
the evidence was insufficient to support his conviction for capital murder, a
review of the facts and other evidence underlying his conviction is
necessary, as this is the information which the jury considered when
answering the special issues in the punishment phase of the trial. James v.
State, 772 S.W.2d 84, 88 (Tex.Cr.App.1989), 493 U.S. 885, 110 S.Ct. 225,
107 L.Ed.2d 178 (vacated and remanded on other issue);James v.
State, 805 S.W.2d 415 (Tex.Cr.App.1990) (on remand); cert. denied, 501
U.S. 1259, 111 S.Ct. 2915, 115 L.Ed.2d 1078 (1991).

The evidence adduced at trial was that on December 23, 1991, appellant
poured a combustible liquid on the floor throughout his home and
intentionally set the house on fire, resulting in the death of his three
children. Amber, age two, and twins Karmon and Kameron, age 1, died of
acute carbon monoxide poisoning as a result of smoke inhalation, according
to autopsy reports. Neighbors of appellant testified that as the house began
smouldering, appellant was crouched down in the front yard, and despite
the neighbors' pleas, refused to go into the house in any attempt to rescue
the children. An expert witness for the State testified that the floors, front
threshold, and front concrete porch were burned, which only occurs when an
accelerant has been used to purposely burn these areas. This witness further
testified that this igniting of the floors and thresholds is typically employed
to impede firemen in their rescue attempts.

The testimony at trial demonstrates that appellant neither showed

remorse for his actions nor grieved the loss of his three children. Appellant's
neighbors testified that when the fire blew out the windows, appellant
hollered about his car and ran to move it away from the fire to avoid its
being damaged. A fire fighter also testified that appellant was upset that his
dart board was burned. One of appellant's neighbors testified that the
morning following the house *355 fire, Christmas Eve, appellant and his
wife were at the burned house going through the debris while playing music
and laughing.

At the punishment phase of trial, testimony was presented that appellant

has a history of violence. He has been convicted of numerous felonies and
misdemeanors, both as an adult and as a juvenile, and attempts at various
forms of rehabilitation have proven unsuccessful.FN1

FN1. Maria Tassie Malowney, an Assistant District Attorney for Carter

County, Oklahoma, listed the felonies and misdemeanors with which
appellant has been charged and/or convicted. She explained that the
synopsis of the juvenile offenses cannot be released, but that appellant has
been involved in criminal activity since he was fifteen or sixteen years of
age. Malowney testified that the felonies of which appellant
was convicted are as follows:
1) May 1986: Second Degree Burglary

Punishment: probation, placed in a Nonviolent Intermediate Offender Act

2) April 1987: Grand Larceny

Punishment: two years probation and 60 days in the county jail

 Additionally, misdemeanors for which appellant was convicted are as
follows:
1) April 1986: Carrying a Concealed Weapon and Public Intoxication

Punishment: 4 days in the county jail and ordered to pay fine and costs

2) May 1986: Entering a Building with Unlawful Intent and Contributing to

the Delinquency of a Minor (supplying paint for sniffing to a twelve-year-old
child)

Punishment: ordered to pay restitution, 15 days in the county jail and six
months probation, running concurrently

3) November 1986: Two counts of Contributing to the Delinquency of a

Minor (supplying paint to a twelve-year-old child and an eleven-year-old
child)

Punishment: 60 days in the county jail

4) November 1988: Driving Under the Influence of Liquor and/or Drugs

(substance was paint)

Punishment: One year probation on the condition he check himself into an

in-patient rehabilitation program for paint abuse.

5) February 1989: Shoplifting

Punishment: Probation orders from April 1987 Grand Larceny conviction and
November 1988 DUI conviction vacated, sent to a special boot camp
program, then given a two year sentence with all but 74 days suspended on
the condition he 1) complete a substance abuse treatment program, 2)
attend at least one AA or NA meeting per week, and 3) take part in a
urinalysis every week and a half.

The jury also heard evidence of appellant's character. Witnesses testified

that appellant was verbally and physically abusive toward his family, and
that at one time he beat his pregnant wife in an effort to cause a
miscarriage. A friend of appellant's testified that appellant once bragged
about brutally killing a dog. In fact, appellant openly admitted to a fellow
inmate that he purposely started this fire to conceal evidence that the
children had recently been abused.

Dr. James Grigson testified for the State at punishment. According to his
testimony, appellant fits the profile of an extremely severe sociopath whose
conduct becomes more violent over time, and who lacks a conscience as to
his behavior. Grigson explained that a person with this degree of sociopathy
commonly has no regard for other people's property or for other human
beings. He expressed his opinion that an individual demonstrating this type
of behavior can not be rehabilitated in any manner, and that such a person
certainly poses a continuing threat to society.

[1] [2] [3] [4] [5] Appellant first contends the evidence is
insufficient to support the jury's finding that he is a continuing threat to
society. In determining whether evidence is sufficient to support a jury's
answer to this special issue presented in the punishment phase of a capital
murder trial, this Court views the evidence in the light most favorable to the
verdict to determine whether a rational trier of fact could have found the
elements of Tex.Code Crim.Proc.Ann. art. 37.071 2(b)(1) beyond a
reasonable doubt.FN2Rivera v. State, 808 S.W.2d 80, 94
(Tex.Cr.App.1991), cert. denied, 502 U.S. 902, 112 S.Ct. 279, 116 L.Ed.2d
231 (1991); Hathorn v. State, 848 S.W.2d 101, 115
(Tex.Cr.App.1992), cert. denied, 509 U.S. 932, 113 S.Ct. 3062, 125 L.Ed.2d
744 (1993); Willis v. State, 785 S.W.2d 378, 386 (Tex.Cr.App.1990), cert.
denied, 498 U.S. 908, 111 S.Ct. 279, 112 L.Ed.2d 234 (1990). Any evidence
adduced *356 at the guilt/innocence and punishment phases of trial can be
used by the jury when considering future dangerousness. Willis v. State, 785
S.W.2d at 386; Valdez v. State, 776 S.W.2d 162, 166-67
(Tex.Cr.App.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2575, 109 L.Ed.2d
757 (1990); Mitchell v. State,650 S.W.2d 801, 812 (Tex.Cr.App.1983), cert.
denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984). Often, the
circumstances of the offense alone are enough to sustain an affirmative
answer to this special issue. Willis at 386; Sosa v. State, 769 S.W.2d 909,
912 (Tex.Cr.App.1989); Moreno v. State, 721 S.W.2d 295, 302
(Tex.Cr.App.1986). A defendant's prior criminal record is also relevant to
future dangerousness.Willis at 387; Valdez v. State, 776 S.W.2d at
167; Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987).

FN2. Article 37.071 2(b)(1) provides that:

On conclusion of the presentation of the evidence, the court shall submit the
following issues to the jury:

(1) whether there is a probability that the defendant would commit criminal
acts of violence that would constitute a continuing threat to society.
The facts of the offense are heinous and exhibit complete disregard for
human life. Appellant saturated his house with a combustible liquid, ignited
the house, and left his three children in the burning house. We believe a
rational trier of fact could have answered yes to the second special issue
based solely on the circumstances of the offense. Willis at 386; Sosa v.
State, 769 S.W.2d at 912; Moreno v. State, 721 S.W.2d at 302.

[6] Criminal history and reputation evidence are also probative of

future dangerousness. Willis at 387;Valdez at 167; Keeton v. State, 724
S.W.2d at 61; James v. State, 772 S.W.2d at 90. The fact that appellant has
been convicted of numerous offenses and has failed all attempts of
rehabilitation, as well as having committed other violent acts apart from his
criminal convictions, are relevant considerations the jury could have used to
find that appellant would present a continuing threat to society.

Having reviewed all the evidence in the light most favorable to the verdict,
including trial evidence, circumstances of the offense, and appellant's
extensive criminal history, we find sufficient evidence in the record for a
rational trier of fact to have concluded beyond a reasonable doubt that there
was a probability that appellant would commit criminal acts of violence that
would constitute a continuing threat to society.

[7] Appellant also contends in point of error four that the evidence is
insufficient to support a finding that mitigating circumstances would not
warrant a life sentence. See Tex.Code Crim.Proc.Ann. art. 37.071 2(e).
Appellant fails to point to any mitigating factors which would persuade a jury
to answer this special issue in his favor and render a life sentence. Likewise,
no mitigating circumstances are apparent from a thorough reading of the
record. No authorities are cited and no argument is made under this point of
error; therefore, nothing is presented for review on this
point. Tex.R.App.Proc. 74(f); Woods v. State, 569 S.W.2d 901, 905
(Tex.Cr.App.1978), cert. denied, 453 U.S. 913, 101 S.Ct. 3145, 69 L.Ed.2d
995 (1981); Byrom v. State, 528 S.W.2d 224, 226 (Tex.Cr.App.1975).
Accordingly, appellant's fourth point of error is overruled.

[8] Appellant maintains in point of error number one that the trial court
abused its discretion in refusing to grant appellant's motion for change of
venue. Appellant argues that, especially in light of inflammatory statements
made by the Navarro County District Attorney, he could not receive a fair
trial.

The trial court conducted a hearing on the motion to change venue on

August 3, 1992. Testifying for appellant were Stacy Willingham, appellant's
wife; and Tracy and Ronnie Kuykendall, Stacy Willingham's brothers. These
witnesses testified that it was their opinion that appellant could not receive a
fair trial in Navarro County due to the media coverage, which included a
televised statement made by the district attorney. Appellant introduced into
evidence various newspaper articles pertaining to the events of the fire. Also
introduced was a video tape of the criminal district attorney, in which he
commented that the possible motive for appellant's commission of this
offense was that the children were interfering with [appellant's] beer
drinking and dart throwing.

The State then offered the testimony of three witnesses: J.D. Kuykendall,
appellant's father-in-law; Mildred Kuykendall, appellant's*357 mother-in-
law; and Jim Gill, an attorney from Corsicana. These witnesses testified that
they believed the affiants supporting the Motion to Change Venue were not
credible due to their lack of knowledge to support their statements. They
further testified that appellant's witnesses possessed special knowledge of
the defendant, as a result of their relationship with the defendant, which
rendered their testimony less than credible. These witnesses also testified
that they believed appellant could obtain a fair and impartial trial in Navarro
County.

The trial court denied appellant's motion for a change of venue, but the
judge stated, ... with reference to the Change of Venue: I realize that it
may crop back up, you know, sometime [sic] down the road; and if it does,
we will handle it as it comes up. Neither during nor following voir dire of the
jury panel did Appellant reurge his motion to change venue.

[9] [10] A change of venue is proper and consistent with principles

of due process when a defendant demonstrates his inability to obtain an
impartial jury or a fair trial at the place of venue. Groppi v. Wisconsin,400
U.S. 505, 510-11, 91 S.Ct. 490, 493, 27 L.Ed.2d 571 (1971); Hathorn v.
State, 848 S.W.2d at 109; seeHenley v. State, 576 S.W.2d 66, 69
(Tex.Cr.App.1978). A change of venue is the remedy to jury prejudice
resulting from extensive, widespread inflammatory news coverage. Beets v.
State, 767 S.W.2d 711 (Tex.Cr.App.1987), cert. denied, 492 U.S. 912, 109
S.Ct. 3272, 106 L.Ed.2d 579 (1989); Henley v. State, 576 S.W.2d at 71.

[11] [12] The mere fact that a crime was publicized in the news
media does not establish prejudice or require a change of venue per
se. Hathorn at 109; Beets v. State, 767 S.W.2d at 743; see Johnson v.
Texas,773 S.W.2d 322, 324 (Tex.Cr.App.1989), aff'd on other grounds, 509
U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Rather, the test is
whether outside influences affecting the community's climate of opinion as
to a defendant are inherently suspect. Hathorn at 109; Beets, 767 S.W.2d
at 742; Henley, 576 S.W.2d at 72.In order to prevail in a motion to change
venue, a defendant must prove that publicity about the case is pervasive,
prejudicial and inflammatory. A defendant must demonstrate an actual,
identifiable prejudice attributable to pretrial publicity on the part of the
community from which members of the jury will come.DeBlanc v.
State, 799 S.W.2d 701, 704 (Tex.Cr.App.1990), cert. denied, 501 U.S.
1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991); Beets at 743; Faulder v.
State, 745 S.W.2d 327, 338 (Tex.Cr.App.1987).

[13] [14] When a trial court is presented with a motion to change

venue, the trial judge must act as fact-finder with regard to the issue
presented. Tex.Code Crim.Proc.Ann. Art 31.04; see Cook v. State, 667
S.W.2d 520, 522 (Tex.Cr.App.1984). The trial judge is in a better position
than this Court to resolve such issues as a result of his ability to observe the
demeanor of witnesses and scrutinize their veracity. Consequently, we will
affirm the trial court's judgment absent evidence of an abuse of
discretion. Hathorn at 109; Aranda v. State, 736 S.W.2d 702, 705
(Tex.Cr.App.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101
L.Ed.2d 947 (1988); Freeman v. State, 556 S.W.2d 287, 297
(Tex.Cr.App.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d
794 (1978).

The newspaper articles offered by appellant demonstrated nothing more

than accurate reporting of a newsworthy occurrence in Navarro
County. See Johnson v. State, 773 S.W.2d at 325. Although the statement
made by the district attorney was televised, the record does not
demonstrate that either the newspaper or television reporting was
widespread. Nothing in the record indicates an identifiable prejudice existed
in the community, nor does it show that the community climate of opinion
was inherently suspect.FN3

FN3. Of the twelve jurors selected, four (4) remembered reading

something in the newspapers; three (3) had not heard anything or read
anything about the case; two (2) reported that they had vaguely heard talk
about the case; one (1) recalled hearing the basics of the case on
television; one (1) remembered reading about the fire in the paper and
knew that the fire was set; and one (1) believed she had heard what
everyone in Corsicana had heard.

Furthermore, all of these jurors testified that they could set aside anything
they had heard about the case and judge the case solely upon the evidence
heard at trial.
*358 Appellant has failed to prove that these articles and televised
statement amounted to pervasive, prejudicial, or inflammatory publicity.
After reviewing the record, we conclude that the trial court did not abuse its
discretion in overruling appellant's motion for change of venue and
proceeding with the trial in Navarro County. Appellant's first point of error is
overruled.

[15] In his second point of error, appellant argues that the trial court
erred in refusing to admit evidence offered by the defense to impeach the
testimony of a witness for the State. Johnny Webb, a State's witness,
testified that appellant confessed to him that he committed the offense; that
appellant explained in detail how he poured lighter fluid throughout the
house, purposely burned one of the children, set the house on fire, fled, and
refused to go back into the house to rescue the children.

During appellant's cross-examination of Webb, no inquiry was made

concerning Webb's alleged interest in the case, and Webb was not afforded
an opportunity to explain or deny the significance of any such
circumstances. Appellant then offered the testimony of James McNally for
the purpose of impeaching the State's witness Webb. The Court sustained
the State's objection to this testimony. In a bill of exceptions, defense
witness McNally testified that Webb had at one time stated he had been
threatened by prison deputies, and that he was hoping to get out-get time
cut or something was supposed to happen with his lawyer in a couple of
months. When asked whether Webb was threatened in connection with
obtaining a statement on the case at bar, no clear answer was given.
Appellant urged that this testimony was admissible to show motive of the
State's witness to perjure himself. The State reurged its objection and the
trial court sustained the objection.
 [16] [17] Impeachment of a witness means adducing proof that such
witness is unworthy of belief or credit. Ransom v. State, 789 S.W.2d 572,
587 (Tex.Cr.App.1989); cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111
L.Ed.2d 765 (1990); Jackson v. State, 516 S.W.2d 167, 175
(Tex.Cr.App.1974). The credibility of a witness may be attacked, inter alia,
by evidence that the witness is slanting his testimony against or in favor of a
party as a result of personal interest or bias in the cause. Tex.R.Crim. Evid.
612(b).

[18] [19] [20] What first must be established is a specific

connection between the witness' testimony and the cause, disclosing an
actual bias or motive, see London v. State, 739 S.W.2d 842, 846
(Tex.Cr.App.1987), and this nexus must be demonstrated by laying the
proper foundation. To lay a proper predicate for impeachment the witness
should be asked about any possible interest or bias he may have before
there is an attempt to prove interest or bias otherwise. See Green v.
State, 566 S.W.2d at 88. The witness must first be informed as to the
circumstances supporting a claim of bias or interest and must be given an
opportunity to explain or deny such circumstances. Tex.R.Crim.Evid.
612(b); Green v. State, 566 S.W.2d 578, 587-88 (Tex.Cr.App.1978).

[21] No nexus was established between the admission made by

appellant to Webb and Webb's alleged hopes of early release. Furthermore,
trial counsel failed to lay a proper foundation upon which to impeach the
testimony of the State's witness Johnny Webb. When a party does not lay
the proper predicate for impeaching a witness, it is not error to refuse to
allow the admission of such testimony. See Moore v. State,652 S.W.2d 411,
413 (Tex.Cr.App.1983). Appellant's second point of error is overruled.

[22] Appellant contends in point of error number three that the trial
court erred in its charge to the jury during the punishment phase of the trial
by failing to instruct the jury on the effect of parole, as parole would qualify
as a mitigating circumstance under the facts of this case. Appellant posits
that the jury discretion was impermissibly channeled to a sentence of death,
in violation of the Eighth Amendment. Appellant cites Lockett v. Ohio, 438
U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978), which holds
that a jury may not be ... precluded from considering, as a mitigating
factor, any *359 aspect of the defendant's character or record, and any of
the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death, in support of his argument that appellant did not
receive individualized treatment.
 [23] [24] The concept of parole eligibility bears no relationship to the
defendant's character or record, or circumstances of the offense. Smith v.
State, 898 S.W.2d 838, 853 (Tex.Cr.App.1995), and cases cited therein.
Rather, mitigating evidence is defined as any evidence that a juror might
regard as reducing the defendant's moral blameworthiness. Tex.Code
Crim.Proc.Ann. art. 37.071 2(f)(4). For purposes of the Eighth
Amendment, mitigating circumstances are those circumstances of the
defendant's background and character [which will support a] belief, long
held by this society, that defendants who commit criminal acts that are
attributable to [such circumstances] may be less culpable than defendants
who have no such excuse. Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct.
2934, 2947, 106 L.Ed.2d 256 (1989); Lewis v. State, 815 S.W.2d 560, 567
(Tex.Cr.App.1991), cert. denied, 503 U.S. 920, 112 S.Ct. 1296, 117 L.Ed.2d
519 (1992). Such evidence may be considered by the jury when deliberating
at punishment. Penry v. Lynaugh,492 U.S. at 328, 109 S.Ct. at 2951.

Thus, we hold the matter of parole eligibility is not a proper consideration

for the jury's deliberations on punishment. Smith, 898 S.W.2d at 853-
54. Accordingly, we hold the trial court's refusal to charge the jury on the
effect of parole was proper. Appellant's third point of error is overruled.

The judgment and sentence of the trial court are affirmed.

CLINTON, Judge, concurring.

In his third point of error appellant argues that the trial court erred in
failing to charge the jury at the punishment phase of trial that, if sentenced
to life imprisonment, he would have to serve a minimum of 35 years in the
penitentiary before becoming eligible for parole. He seems to argue that this
information in and of itself constitutes mitigating evidence in contemplation
of the Eighth Amendment to the United States Constitution. The majority
rejects this argument on the basis of its naked conclusion that parole
eligibility bears no relationship to the defendant's character or record, or the
circumstances of the offense. At 859. I agree, at least, that appellant fails
to establish in his brief how minimum parole eligibility constitutes
constitutionally mitigating evidence in this case.

In my view, minimum parole eligibility is constitutionally mitigating only to

the extent that, in combination with other evidence, it tends to show that
the capital defendant will not commit criminal acts of violence that would
pose a continuing threat to society. Article 37.071, 2(b)(1), V.A.C.C.P.
See Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995) (Clinton, J.,
dissenting, 898 S.W.2d at 864 & 867-68; Maloney, J., dissenting,898 S.W.2d
at 882-84). It has no intrinsically mitigating significance
otherwise. Id., (Maloney, dissenting, 898 S.W.2d at 874-75). Appellant does
not argue that he put on evidence to show, e.g., that for the duration of his
lengthy incarceration he will pose no threat to the prison population or that
by the time he is eligible for parole he will not pose a threat to any facet of
society. Compare Matson v. State, 819 S.W.2d 839 (Tex.Cr.App.1991). In
combination with such evidence, information about minimum parole
eligibility is indisputably relevant to the issue of future dangerousness. Had
appellant adduced such evidence, to prevent him from also informing the
jury of his minimum parole eligibility date would likely have violated the
Eighth Amendment in much the same way it would violate due
process. Smith v. State, supra (Clinton, J., dissenting).

Because he did not, however, I join the judgment of the Court. I do not
join its opinion.

MALONEY, J., joins this opinion.

BAIRD, J., joins this opinion for the reasons stated in *360 Matson v.
State, 819 S.W.2d 839 (Tex.Cr.App.1991), but for the reasons stated in his
concurring opinion in Smith v. State, 898 S.W.2d 838
(Tex.Cr.App.1995) ( Baird, J., concurring), specifically does not join that
portion of the opinion referring to the dissenting opinions in Smith, 898
S.W.2d 838 at 857 and 872 (Clinton, J., dissenting and Maloney, J.,
dissenting.).

OVERSTREET, Judge, concurring.

In point number three, appellant alleges, The Trial Court erred in its
charge to the jury during the punishment phase of the trial by failing to
instruct the jury on the effect of parole, as parole would qualify as a
mitigating circumstance under the facts of this case. Appellant's argument
in support of that point focuses upon the second special issue asking
whether, after consideration of all of the mitigating evidence, there is a good
reason for the defendant to be sentenced to life imprisonment rather than
death. He notes that the United States Supreme Court has grappled with the
proper role that the State may play in guiding juries in the assessment of
punishment versus an improper restriction of the sentencing authority's
ability to exhibit mercy. He suggests that since the State must restrict the
conduct for which the defendant becomes eligible for death, but must not
restrict the sentencer in consideration of factors that might weigh against
imposing a death sentence, the trial court's absolute refusal to give the jury
information about parole amounted to an instruction that the jury may not,
or should not, consider it. Appellant insists that such impermissibly
channeled the jury's discretion to a sentence of death in violation of the
Eighth Amendment of the United States Constitution.

As appellant's claim avers error in terms of instructions on parole being

mitigating evidence, I agree with the majority's conclusion that the trial
court's refusal to charge the jury on the effect of parole was proper because
I do not believe that such evidence is necessarily within the ambit of Penry. I
also point out that this Court's previous caselaw has held that a trial court
properly refuses to instruct the jury at the punishment stage of a capital
murder trial on the parole laws in Texas. Elliott v. State, 858 S.W.2d 478,
490 (Tex.Cr.App.1993), cert. denied, 510 U.S. 997, 114 S.Ct. 563, 126
L.Ed.2d 463 (1993); Boyd v. State, 811 S.W.2d 105, 121
(Tex.Cr.App.1991), cert. denied, 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d
466 (1991);Knox v. State, 744 S.W.2d 53, 62-64 (Tex.Cr.App.1987), cert.
denied, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934 (1988); Andrade v.
State, 700 S.W.2d 585, 587-88 (Tex.Cr.App.1985), cert. denied, 475 U.S.
1112, 106 S.Ct. 1524, 89 L.Ed.2d 921 (1986).

Nevertheless, I point out that in Simmons v. South Carolina, 512 U.S.

154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) the U.S. Supreme Court has
recently found denial of the constitutional right to due process and therefore
reversible error in a trial court refusing to inform a jury of the defendant's
parole ineligibility. While we have initially interpreted Simmons' application
to our Texas capital punishment procedures, see Smith v. State, 898 S.W.2d
838 (Tex.Cr.App.1995), I cannot agree with the majority's broad blanket
statement that the matter of parole eligibility is not a proper consideration
for the jury's deliberations on punishment.Willingham v. State, 897 S.W.2d
351, 359 (Tex.Cr.App.1995). Pursuant to Simmons, and the Due Process
Clause of the U.S. Constitution, there are circumstances in which it may be
appropriate and/or necessary to inform the jury of parole law in capital
punishment situations. I also note that in the case at bar, during punishment
deliberations the jury sent out a note asking about what a life sentence
means in terms of years and about whether parole could be denied.

Article 37.07, 4, V.A.C.C.P., enacted after an amendment to the Texas

Constitution, mandates that the trial court, i.e. the judicial department,
include instructions on parole law in non-capital felonies; thus, jury
instructions on parole law are now constitutionally permissible and are not in
violation of separation of powers principles. I also note that while Art. 37.07,
4, V.A.C.C.P. provides for the jury to be informed of various matters as to
parole eligibility in non-capital punishment proceedings, it does not
prohibit *361 such information from being provided to juries in capital
proceedings. I also do not believe that the Legislature's silence in not
amending Article 37.071, V.A.C.C.P. to provide for parole law instructions in
capital proceedings should necessarily be construed to mean that the
Legislature affirmatively meant that such instructions should not be given in
capital cases. I am unwilling to conclude that such silence absolutely
indicates that the legislative body of Texas reviewed our decisions in caselaw
and somehow affirmatively decided that this Court's opinions on the issue
represented its intentions.

Because I agree that information about the effect of parole is not

necessarily within the ambit of Penrymitigating evidence, I agree with the
majority's disposition of point of error number three. I therefore concur only
in the results reached.

Tex.Cr.App.,1995.
Willingham v. State
897 S.W.2d 351
116 S.Ct. 385

516 U.S. 946, 116 S.Ct. 385, 133 L.Ed.2d 307, 64 USLW 3316

(Cite as: 516 U.S. 946)

H
Supreme Court of the United States

Cameron Todd WILLINGHAM, petitioner,

v.

TEXAS.

No. 95-5391.

Oct. 30, 1995.

Case below, 897 S.W.2d 351.

Petition for writ of certiorari to the Court of Criminal Appeals of Texas

denied.

U.S.,1995

Willingham v. Texas

516 U.S. 946, 116 S.Ct. 385, 133 L.Ed.2d 307, 64 USLW 3316

END OF DOCUMENT
118 S.Ct. 2299 Page 1
524 U.S. 917, 118 S.Ct. 2299, 141 L.Ed.2d 159, 66 USLW 3782
(Cite as: 524 U.S. 917)

Supreme Court of the United States

Cameron Todd WILLINGHAM, petitioner,
v.
TEXAS.

No. 97-7724.
June 8, 1998.

Petition for writ of certiorari to the Court of

Criminal Appeals of Texas denied.

U.S.,1998
Willingham v. Texas
524 U.S. 917, 118 S.Ct. 2299, 141 L.Ed.2d 159, 66
USLW 3782

END OF DOCUMENT

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 1
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

that evidence admitted during the punishment phase

Only the Westlaw citation is currently available. of Petitioner's trial did not violate the Eighth and
Fourteenth Amendments, that Texas's appellate re-
United States District Court, N.D. Texas, Dallas Di- view of death penalty convictions is constitutional,
vision. and that Petitioner was not entitled to a jury instruc-
Cameron Todd WILLINGHAM, Petitioner, tion on parole. Upon de novo review of the Magis-
v. trate Judge's findings and conclusions to which
Gary L. JOHNSON, Director, Texas Department these objections pertain, it is fairly apparent that the
of Criminal Justice, Institutional Division, Re- objections regarding self-representation on appeal,
spondent. the alleged conflict of interest, jury selection pro-
cedures, the expert's opinion testimony, the defense
No. Civ.A. 3:98-CV-0409-L.
witness's impeachment, evidence admitted during
Dec. 31, 2001.
the punishment phase of trial, Texas's death penalty
ORDER appellate review, and the lack of a jury instruction
LINDSAY, J. on parole are without merit and should be overruled
*1 After making an independent review of the without further discussion.
pleadings; files and records in this case; the Find-
The objections regarding whether Petitioner's
ings, Conclusions, and Recommendation of the
appellate counsel was ineffective when he did not
United States Magistrate Judge, filed July 25, 2000;
appeal the trial court's disqualification of the
and Petitioner's Objections to Findings, Conclu-
venirewomen, the limitations placed on Petitioner's
sions, and Recommendation of the United States
voir dire questions, and the admission of hearsay
Magistrate Judge (Petitioner's Objections), filed
testimony appear, at first blush, to have possible
August 4, 2000; the court concludes that the find-
merit; however, a more detailed analysis reveals
ings and conclusions of the United States Magis-
that they also lack merit. Because the lack of merit
trate Judge are correct, and they are therefore ac-
is not apparent initially, the court deems it appro-
cepted as those of the court. Petitioner's Objections
priate to discuss the bases for overruling these ob-
are overruled.
jections. Accordingly, the court makes the follow-
Petitioner made objections regarding the Ma- ing findings and conclusions regarding these three
gistrate Judge's findings that Petitioner did not have areas of objections.
the right to represent himself on appeal; that no
I. Standard of Review
conflict of interest existed between Petitioner and
A habeas corpus petition is reviewed in light of
his appellate counsel; that Petitioner's appellate
standards set forth by 28 U.S.C. 2254(d).
counsel was effective, although he (counsel) chose
not to raise as grounds for appeal that: 1) the trial An application for a writ of habeas corpus on
court struck two venirewomen for cause, 2) the trial behalf of a person in custody pursuant to the
court limited Petitioner's voir dire questions, 3) the judgment of a State court shall not be granted
trial court allegedly failed to follow proper jury se- with respect to any claim that was adjudicated
lection procedures, 4) the trial court admitted on the merits in State court proceedings unless
hearsay testimony, 5) a state expert was permitted the adjudication of the claim-
to give opinion testimony, and 6) a defense witness
was allegedly improperly impeached. Petitioner *2 (1) resulted in a decision that was contrary
further objected to the Magistrate Judge's findings to, or involved an unreasonable application of,

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 2
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

clearly established Federal law, as determined question; and 3) the trial court admitted hearsay
by the Supreme Court of the United States; or testimony during the punishment phase of Petition-
er's trial. Petition for Writ of Habeas Corpus at
(2) resulted in a decision that was based on an 15-36.
unreasonable determination of the facts in light
of the evidence presented in the State court FN1. In ruling on Petitioner's other objec-
proceeding. tions, the court has already addressed his
other bases for habeas relief and finds it
28 U.S.C. 2254(d). The Supreme Court has unnecessary to further discuss them.
construed federal law to guarantee a criminal de-
fendant effective assistance of counsel, which in- 1. Strikes for Cause
cludes the right to effective assistance of counsel on With respect to the strikes for cause, the Ma-
a defendant's first appeal as of right. See Evitts v. gistrate Judge concluded that the Supreme Court
Lucey, 469 U .S. 387, 396 (1985). permits venirewomen to be stricken if their views
on the death penalty are such that they would
The court evaluates whether counsel was ef- prevent or substantially impair the performance of
fective by using the standard set forth in Strickland [their] duties as a juror in accordance with [their]
v. Washington, 466 U.S. 668 (1984). See Williams instructions and ... oath. Findings and Conclu-
v. Taylor, 529 U.S. 362, 390-91. (2000). Under the sions at 12 (citing Wainwright v. Witt, 469 U .S.
Strickland test, in order to prove that counsel was FN2
412, 420 (1985)). The Magistrate Judge further
ineffective, a Petitioner must prove that counsel's concluded that the venirewomen were stricken be-
performance was deficient and that this deficient cause they gave voir dire testimony that revealed
performance prejudiced his defense to the point that they held views on the death penalty which would
his trial was unfair and unreliable. 466 U .S. at 687. have substantially impaired their ability to perform
The prejudice requirement dictates that, [a]n error as jurors. Id. at 14. The Magistrate Judge then cited
by counsel, even if professionally unreasonable, Broxton v. State, 909 S.W.2d 912, 916
does not warrant setting aside [a] judgment [in] a (Tex.Crim.App.1995), to illustrate that Petitioner
criminal proceeding if the error had no effect on the was not prejudiced by his counsel's failure to raise
judgment. Id. at 691. Thus, a defendant must this issue on appeal, because a Texas appellate
show that there is a reasonable probability that, but court would have concluded the trial court acted
for counsel's unprofessional errors, the result of the within its discretion when it found that the venire-
proceeding would have been different. Id at 694. women's ability to perform as jurors was substan-
A reasonable probability is a probability sufficient tially impaired. Findings and Conclusions at 14.
to undermine confidence in the outcome. Id. The Magistrate Judge therefore concluded that an
appellate court would not have reversed the trial
II. Application
court's decision to strike the venirewomen for
Petitioner's habeas corpus petition asserts that
cause. Id.
he is entitled to habeas relief because his appellate
counsel was ineffective in violation of Evitts v. FN2. The relevant language in Wainwright
Lucey. Petition for Writ of Habeas Corpus at 15. is actually found at page 424.
Petitioner argues that his appellate counsel was in-
FN1
effective because, among other things, counsel *3 Petitioner objects to this conclusion by as-
did not raise on appeal that: 1) the trial court struck serting the [M]agistrate [J]udge failed to consider
two venirewomen for cause; 2) during voir dire, the Texas law on the exclusion of jurors [and][w]ithout
trial court denied Petitioner's counsel an opportun- doing so, [P]etitioner suggests [he] could not make
ity to rehabilitate a venirewoman with a rebuttal a determination of whether this claim would have

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 3
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

been successful on direct appeal. Petitioner's Ob- Petitioner objects to this conclusion and argues
jections at 8. This objection is unfounded. The Ma- that Texas authority required the trial court to per-
gistrate Judge relied on Broxton, and Broxton illus- mit Petitioner's trial counsel to ask the question. Pe-
trates that Texas appellate courts show deference to titioner's Objections at 11-12. The initial flaw in
trial courts' determinations that venirepersons' Petitioner's objection is that-assuming Texas au-
views will substantially impair their ability to per- thority requires the foregoing question-Petitioner
form as jurors. 909 S.W.2d at 916-17. Thus, the merely complains that he was not allowed to
Magistrate Judge did consider Texas law, and his clearly ask the question. Petitioner's Objections at
findings reveal that under such law, the outcome of 11-12. This does not adequately challenge the Ma-
Petitioner's appeal would not have changed if his gistrate Judge's finding that the trial court prohib-
appellate counsel had raised the strikes for cause. ited the question only after similar questions had
Additionally, even if the Magistrate Judge did not been asked, because Allridge protects the court's
consider Texas law, this court has considered such discretion in this regard. In fact, Allridge holds that
law and concludes that the Magistrate Judge's find- [a]s a trial court may impose reasonable restric-
ings were correct. See Rachal v. State, 917 S.W.2d tions on exercise of the voir dire, it may cut off du-
799, 810-11 (Tex.Crim.App.1996) (en banc) plicitous questioning, and if the prospective juror
(discussing voir dire testimony analogous to the states his or her position clearly, unequivocally and
testimony of the stricken venirewomen, and con- without reservation, the court may properly refuse
cluding that such testimony presents a situation to permit further questioning. 762 S.W.2d at 168.
where an appellate court must defer to the trial
court). Accordingly, the Magistrate Judge correctly *4 Additionally, Petitioner is mistaken that the
held that Petitioner was not prejudiced when his ap- trial court was even obligated to allow counsel to
pellate counsel did not raise the strikes for cause on ask the question. See Colella v.. State, 915 S.W.2d
appeal, because the outcome would have been no 834, 841-42 (Tex.Crim.App.1995) (en banc)
different if this issue had been raised. Petitioner has (holding that before a venireperson is disqualified,
therefore failed to show that his appellate counsel Texas courts no longer require that she be asked
was ineffective. whether she can give honest answers to questions
of fact, even if it meant that the death penalty might
2. Voir Dire of Venirewoman be assessed as a result). The question proposed by
With respect to rehabilitating one of the venire- Petitioner's trial counsel tracks the question the
women, Petitioner's trial counsel wanted to ask, Colella court held is no longer required before a
whether, irrespective of [your] personal beliefs, if venireperson is disqualified. Accordingly, Petition-
[you take] an oath, whether [you can] follow the er was not prejudiced when his counsel did not ap-
law and decide the questions based upon the evid- peal this issue, because it would not have changed
ence. Findings and Conclusions at 15. The trial the appeal's outcome. Petitioner therefore cannot
court did not allow Petitioner's trial counsel to ask rely on this argument to demonstrate that his coun-
this question. The Magistrate Judge concluded that sel was ineffective.
this was within the trial court's discretion, because
the question was duplicative of questions that had 3. Hearsay Testimony
already been asked. Id. (citing Allridge v. State, 762 With respect to the hearsay testimony, the Ma-
S.W.2d 146, 167 (Tex.Crim.App.1988), cert. gistrate Judge found that the trial court allowed sev-
denied, 489 U.S. 1040 (1989)). The Magistrate eral hearsay statements to be admitted during the
Judge then concluded that counsel was not ineffect- punishment phase of Petitioner's trial. Findings and
ive when he did not appeal this issue, because it Conclusions at 18-19. The hearsay consisted of
had no merit. Findings and Conclusions at 16. statements that Petitioner abused his wife and that

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 4
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

Petitioner had once said he would trade his daugh- statement. Petitioner instead objects to the Magis-
ter for the family VCR. Id. Regarding abuse, Peti- trate Judge's conclusion that his wife was properly
tioner's wife gave direct testimony that Petitioner impeached. Findings and Conclusions at 13. He ar-
never abused her and that she never told anyone gues that although hearsay may be used to impeach
that Petitioner abused her. Id. at 18. The state then a witness, the state cannot call a witness solely for
called two rebuttal witnesses who testified that Pe- impeachment purposes. Id. Petitioner cites Hughes
titioner's wife made statements that Petitioner ab- v. State, 4 S.W.3d 1 (Tex.Crim.App.1999), to sup-
used her. Id. at 18-19. The Magistrate Judge con- port this argument. Findings and Conclusions at 13.
cluded that the rebuttal witnesses' testimony was Hughes is not controlling, however, because there
used to impeach Petitioner's wife's testimony. Id. at is no evidence that the state called Petitioner's wife
19. The Magistrate Judge then concluded that Texas solely for impeachment purposes. The court has not
evidentiary rules permit the use of hearsay in this been directed to facts that indicate the state knew
FN3
fashion. Id. (citing Tex.R. Evid. 613(a)). The Petitioner's wife would deny being abused by Peti-
Magistrate Judge therefore concluded that, on ap- tioner. Thus, the court will not assume the state
peal, Petitioner's counsel was not ineffective when called Petitioner's wife solely to later impeach her
he did not raise this issue. Findings and Conclu- abuse testimony with the hearsay statements. Addi-
sions at 19. tionally, even if the state knew that it would im-
peach her abuse testimony, the state nevertheless
FN3. The Judge also found that the content elicited testimony that did not relate to the abuse.
of several hearsay statements overlapped FN4
Accordingly, the state did not call Petitioner's
the testimony of two witnesses who based wife solely to impeach her; it also elicited evidence
their testimony on direct observations, as that independently supported its case. Petitioner's
opposed to hearsay. Findings and Conclu- reliance on Hughes is therefore misplaced. As such,
sions at 19. Thus, even if these hearsay the trial court did not err when it admitted the
statements were inadmissible, they caused hearsay statements for impeachment purposes, and
no prejudice to Petitioner because the con- the outcome of Petitioner's appeal would not have
tent of the statements was presented to the changed if his counsel had raised this issue. Peti-
jury in an admissible form. tioner therefore was not prejudiced, and his appel-
late counsel was not ineffective.
Regarding the VCR statement, the Magistrate
Judge concluded that it could not be used for im- FN4. Petitioner's wife gave testimony re-
peachment purposes. Id. at 20. It therefore was not lated to: 1) Petitioner's criminal history, 2)
admissible hearsay. Id. The Magistrate Judge nev- tattoos that Petitioner had on his body, and
ertheless found that Petitioner was not prejudiced 3) insurance payments that were related to
when his appellate counsel did not raise this issue, Petitioner's crime. See Respondent John-
because the statement was insignificant given the son's Answer, Motion for Summary Judg-
wealth of admissible testimony regarding the nature ment, and Supporting Brief at 10.
of Petitioner's relationship with his wife and chil-
dren. Id. Accordingly, the Magistrate Judge con- *5 The Findings, Conclusions, and Recom-
cluded that admission of the VCR statement was mendation of the United States Magistrate Judge
harmless error. Id. at 20-21. The admission there- are therefore correct, and they are accepted as those
fore was not subject to reversal on appeal. of the court. Respondent's Motion for Summary
Judgment, filed July 1, 1998 is hereby granted, and
Petitioner does not object to the Magistrate Petitioner's Petition for Writ of Habeas Corpus,
Judge's conclusion that he was not prejudiced when filed April 21, 1998 is hereby denied. This action is
his appellate counsel did not appeal the VCR

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 5
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

therefore dismissed with prejudice. Petitioner filed his federal petition for writ of
habeas corpus on April 21, 1998. Respondent filed
FINDINGS, CONCLUSIONS, AND RECOM- an answer and motion for summary judgment on
MENDATION OF THE UNITED STATES MAGIS- July 1, 1998, a supplemental answer on October 15,
TRATE JUDGE 1998, and furnished the state court records. Peti-
STICKNEY, Magistrate J. tioner filed a supplemental petition on May 10,
This cause of action was referred to the United 2000.
States Magistrate Judge pursuant to the provisions
of Title 28, United States Code, Section 636(b), im- IV. RULE 5 STATEMENT
plemented by an order of the United States District Respondent states that Petitioner has exhausted
Court for the Northern District of Texas. The Find- all of his state court remedies, except for his sev-
ings, Conclusions, and Recommendation of the enth ground for relief, which Respondent claims
United States Magistrate Judge follow: Petitioner did not address in his state writ of habeas
corpus. Nonetheless, Respondent asserts that this
FINDINGS AND CONCLUSIONS claim should be denied on its merits pursuant to 28
I. NATURE OF THE CASE U.S.C. 2254(b)(2).
A state prison inmate has filed a petition for
writ of habeas corpus pursuant to Title 28, United V. ISSUES
States Code, Section 2254. In seven claims, Petitioner raises the following
issues:
II. PARTIES
Petitioner, Cameron Todd Willingham, is an A. Petitioner was unconstitutionally denied the
inmate in the custody of the Texas Department of right to represent himself on appeal;
Criminal Justice, Institutional Division (TDCJ-ID).
Respondent, Gary L. Johnson, is the Director of B. There was a conflict of interest between Peti-
TDCJ-ID. tioner and his appellate counsel, caused by Peti-
tioner's assertion that his appellate counsel was
III. PROCEDURAL HISTORY not adequately and diligently representing him;
A jury convicted Petitioner of capital murder,
and his punishment was assessed at death by lethal *6 C. Petitioner received ineffective assistance of
injection. State v. Willingham, Cause No. counsel on appeal;
th
92-00-24467-CR (13 Judicial District Court of
D. The punishment phase of Petitioner's trial was
Navarro County, Tex. Aug. 21, 1992). The case
rendered fundamentally unfair, and resulted in
was appealed to the Texas Court of Criminal Ap-
Petitioner receiving a death sentence in violation
peals, and the Court of Criminal Appeals affirmed
of the Eighth and Fourteenth Amendments to the
the conviction and death sentence in a published
U.S. Constitution, by the admission of inadmiss-
opinion. Willingham v. State, 897 S.W.2d 351
ible evidence;
(Tex.Crim.App.1995), cert. denied, 516 U.S. 946
(1995). Petitioner subsequently filed a state applic- E. The Texas death penalty scheme is unconstitu-
ation for writ of habeas corpus. The Court of Crim- tional as applied because there is no appellate re-
inal Appeals denied relief in a written order, adopt- view of the jury's verdict on the mitigation spe-
ing the trial court's findings of fact and conclusions cial issue;
of law excepting, without explanation, the findings
pertaining to grounds two, six, and eight through F. The trial court violated Petitioner's Eighth
twelve. Ex parte Willingham, No. 35,162 Amendment rights because it denied a request
(Tex.Crim.App. Oct. 1, 1997). from the defense that the jury receive an instruc-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 6
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

tion regarding Petitioner's parole eligibility if that principle to the facts of the prisoner's case. Wil-
given a life sentence; and liams, 120 S.Ct. at 1523.

G. The Texas death penalty scheme violated Peti- This amendment applies to all federal habeas
tioner's equal protection rights under the Four- corpus petitions which were filed after April 24,
teenth Amendment because it prohibited the jury 1996, provided that they were adjudicated on the
in Petitioner's case from receiving an instruction merits in state court. Lindh v. Murphy, 521 U .S.
on parole, whereas juries in non-capital cases re- 320, 326, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481
ceive such an instruction. (1997). Resolution on the merits in the habeas cor-
pus context is a term of art that refers to the state
VI. STANDARD OF REVIEW court's disposition of the case on substantive rather
The pertinent terms of the Antiterrorism and than procedural grounds. Green v. Johnson, 116
Effective Death Penalty Act of 1996 (the AEDPA), F.3d 1115, 1121 (5th Cir.1997).
28 U.S.C. 2254, provide:
VII. FACTUAL BACKGROUND
(d) An application for a writ of habeas corpus on *7 The Texas Court of Criminal Appeals re-
behalf of a person in custody pursuant to the cited the following factual background in its opin-
judgment of a state court shall not be granted ion on direct appeal:
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the The evidence adduced at trial was that on
adjudication of the claim - December 23, 1991, appellant poured a combust-
ible liquid on the floor throughout his home and
(1) resulted in a decision that was contrary to, or intentionally set the house on fire, resulting in the
involved an unreasonable application of, clearly death of his three children. Amber, age two, and
established Federal law, as determined by the Su- twins Karmon and Kameron, age 1, died of acute
preme Court of the United States; or carbon monoxide poisoning as a result of smoke
inhalation, according to autopsy reports. Neigh-
(2) resulted in a decision that was based on an
bors of appellant testified that as the house began
unreasonable determination of the facts in light of
smouldering, appellant was crouched down in
the evidence presented in a State court proceed-
the front yard, and despite the neighbors' pleas,
ing.
refused to go into the house in any attempt to res-
28 U.S.C.A. 2254(d) (West 2000). cue the children. An expert witness for the State
testified that the floors, front threshold, and front
Under the contrary to clause, a federal concrete porch were burned, which only occurs
habeas court may grant the writ of habeas corpus if when an accelerant has been used to purposely
the state court arrives at a conclusion opposite to burn these areas. This witness further testified
that reached by the United States Supreme Court on that this igniting of the floors and thresholds is
a question of law or if the state court decides a case typically employed to impede firemen in their
differently from the United States Supreme Court rescue attempts.
on a set of materially indistinguishable facts. Willi-
ams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, The testimony at trial demonstrates that appel-
1523(2000). Under the unreasonable application lant neither showed remorse for his actions nor
clause, a federal court may grant a writ of habeas grieved the loss of his three children. Appellant's
corpus if the state court identifies the correct gov- neighbors testified that when the fire blew out
erning legal principle from the United States Su- the windows, appellant hollered about his car
preme Court's decisions, but unreasonably applies and ran to move it away from the fire to avoid its

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 7
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

being damaged. A fire fighter also testified that grounds are either legal claims or factual
appellant was upset that his dart board was claims where the record is complete and
burned. One of appellant's neighbors testified that the facts are not in dispute. See Amos v.
th
the morning following the house fire, Christmas Scott, 61 F.3d 333, 346 (5 Cir.), cert.
Eve, appellant and his wife were at the burned denied, 516 U .S. 1005 (1995).
house going through the debris while playing mu-
sic and laughing. A. Petitioner's Right to Represent Himself on Ap-
peal.
At the punishment phase of trial, testimony was In his first ground for relief, Petitioner claims
presented that appellant has a history of violence. that his constitutional right to represent himself on
He has been convicted of numerous felonies and appeal was violated. State records reflect that Peti-
misdemeanors, both as an adult and as a juvenile, tioner's brief on direct appeal was filed in the Court
and attempts at various forms of rehabilitation of Criminal Appeals on January 11, 1993, and the
have proven unsuccessful. State's response brief was filed on July 12, 1993.
On June 10, 1993, prior to the State's brief being
The jury also heard evidence of appellant's filed, but five months after a brief was filed on Peti-
character. Witnesses testified that appellant was tioner's behalf, Petitioner filed a motion in the
verbally and physically abusive toward his fam- Court of Criminal Appeals entitled Appellant's
ily, and that at one time he beat his pregnant wife Motion to Strike Counsel's Brief and to Proceed Pro
in an effort to cause a miscarriage. A friend of Se on Appeal. In this motion, Petitioner stated that
appellant's testified that appellant once bragged the brief his appellate attorney, Greg White, filed
about brutally killing a dog. In fact, appellant did not reflect the true merits of his case, but Peti-
openly admitted to a fellow inmate that he pur- tioner did not state in this motion what issues he
posely started this fire to conceal evidence that wanted raised by appellate counsel that were not
the children had recently been abused. raised in the original brief. This motion was denied
by the Court of Criminal Appeals on June 11, 1993.
Dr. James Grigson testified for the State at
In his first ground for relief, Petitioner claims that
punishment. According to his testimony, appel-
the Court of Criminal Appeals' denial of this mo-
lant fits the profile of an extremely severe so-
tion violated his constitutional right to represent
ciopath whose conduct becomes more violent
himself on appeal.
over time, and who lacks a conscience as to his
behavior. Grigson explained that a person with In Faretta v. California, 422 U.S. 806, 807
this degree of sociopathy commonly has no re- (1975), the United States Supreme Court held that a
gard for other people's property or for other hu- criminal defendant has the constitutional right un-
man beings. He expressed his opinion that an in- der the Sixth Amendment to represent himself at
dividual demonstrating this type of behavior can trial. But recently, in Martinez v. Court of Appeal of
not be rehabilitated in any manner, and that such California, Fourth Appellate District, 528 U.S. 152
a person certainly poses a continuing threat to so- 120 S.Ct. 684, 692, 145 L.Ed.2d 597 (2000), the
ciety. Supreme Court declined to extend the holding in
Faretta to criminal appeals and instead held that a
*8 Willingham, 897 S.W.2d at 354-5.
criminal defendant has no federal constitutional
FN1 right to represent himself on appeal. The state
VIII. EXAMINATION OF THE ISSUES
habeas court in the instant case, which was also the
FN1. An evidentiary hearing is not re- trial court in this case, made its findings of fact and
quired in this case because Petitioner's conclusions of law before Martinez was handed

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 8
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

down by the Supreme Court. In making its finding his appellate counsel was not adequately represent-
with regard to this issue, the trial court instead re- ing him, a conflict of interest was created by this
lied on Webb v. State, 533 S.W.2d 780 claim of ineffective assistance of counsel because
(Tex.Crim.App.1976), a case in which the Texas Petitioner's appellate counsel could not support
Court of Criminal Appeals, in interpreting Faretta, Petitioner's motion to strike his brief without essen-
held that a criminal defendant had a federal consti- tially admitting misconduct, and appellate counsel
tutional right to represent himself on appeal, but was thus forced to choose between evaluating the
that the right of self-representation was not a li- alternative strategies posed by Petitioner, and pro-
cense to capriciously upset the appellate timetable tecting his interests. (Petition at 12). In its order
or to thwart the orderly and fair administration of denying Petitioner's state habeas application, the
justice. Id. at 786. The trial court made the follow- Court of Criminal Appeals denied this particular
ing finding on this issue: claim, but specifically declined to adopt the trial
court's finding on this issue. (Ex parte Willingham
The Court finds that Applicant's first ground of at 1, n. 1).
error, concerning the defendant's right to repres-
ent himself on appeal is without merit. The Court Cuyler v. Sullivan, 446 U.S. 335 (1980), is the
finds that Applicant's appointed counsel filed his United States Supreme Court case that announced
appellate brief on January 11, 1993. The Court the general rule with respect to conflicts of interest
further finds that it was at least five months later between attorneys and clients. In that case, a state
before Applicant requested to proceed pro se. defendant had filed a federal writ of habeas corpus
This request came shortly before the State [sic ] in which he alleged that his trial attorney was oper-
brief was due to be filed. The Court finds that the ating under a conflict of interest because he repres-
Applicant was attempting to use his right of self- ented Sullivan and his two codefendants in three
representation to obstruct the orderly procedure separate criminal trials. The Supreme Court held
in the Courts and the fair administration of that the mere possibility of a conflict of interest is
justice. Therefore, based on the Court of Criminal insufficient to overturn a conviction. Rather, in or-
Appeals holding in Webb v. State, 533 S.W.2d der for a criminal defendant to demonstrate a viola-
780 (Tex.Cr.App.1976), this Court finds that this tion of Sixth Amendment rights that would entitle
ground for relief is without merit and is denied. him to relief, the defendant must establish that his
attorney was actively representing conflicting in-
*9 (State Habeas Findings at 2). terests and that an actual conflict of interest ad-
versely affected his attorney's performance. Once a
Given that the Supreme Court has subsequently
criminal defendant demonstrates such a conflict,
held that a criminal defendant has no federal consti-
prejudice is presumed. Id. at 349-50.
tutional right to represent himself on appeal, the
State court's ruling that this ground for relief was th
In Beets v. Scott, 65 F.3d 1258 (5 Cir.1995),
without merit did not result in a decision that was cert. denied, 511 U.S. 1151 (1996), the Fifth Cir-
contrary to clearly established Federal law. This cuit held that Cuyler v. Sullivan was only applic-
ground is therefore without merit. able in situations where an attorney was represent-
ing multiple interests. The Fifth Circuit further held
B. Conflict of Interest on Appeal
that the Cuyler standard for ineffective assistance
In his second ground for relief, Petitioner con-
of counsel did not extend to conflicts between an
tends that his motion to proceed pro se on appeal
attorney's personal interest and his client's interest,
created a conflict of interest between Petitioner and
as those types of situations were best analyzed un-
his appellate counsel. Specifically, Petitioner
der the Strickland standard for ineffective assist-
claims that, because he alleged in his motion that

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 9
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

ance of counsel. Beets, 65 F.3d at 1269-72. The ex- As support for his argument, Petitioner cites
amples given by the Court in Beets for situations two cases decided by the Second Circuit, Lopez v.
th
where there was a conflict between an attorney's Scully, 58 F.3d 38 (5 Cir.1995), and Mathis v.
nd
personal interest and his client's interest include: Hood, 937 F.2d 790 (2 Cir.1991). But, even if
matters involving payment of fees; doing business the state court's decision on this issue did conflict
with a client; a lawyer's status as a witness; and a with the holdings in these cases, the state court's
lawyer's actions when exposed to malpractice decision would not be contrary to or an unreason-
claims. Beets, 65 F.3d at 1269. able application of clearly established federal law
as determined by the Supreme Court, because the
*10 Petitioner's contention that his appellate at- ruling in Culyer does not encompass conflicts of in-
torney was operating under a conflict of interest is terest in situations other than those involving mul-
best characterized as a claim that a situation where tiple representation. Moreover, unlike the Fifth Cir-
an attorney might have been accused by Petitioner cuit, the Second Circuit has extended the scope of
of malpractice for failing to raise certain claims in Culyer to include conflicts between the interests of
the direct appeal brief resulted in an actual conflict a defendant and the interests of his attorney. See
of interest. Petitioner suggests that his appellate at- United State v. Fulton, 5 F.3d 605, 609 (2d
torney had to choose between representing Petition- Cir.1993). Nevertheless, the cases cited by Petition-
er to the fullest and his own self-interest of attempt- er are distinguishable on their facts and scope.
ing to avoid a malpractice claim, and this choice
might have prevented Petitioner's appellate attorney In Mathis, the Court held that the fact that
from filing a supplemental brief alleging the claims Mathis filed a grievance against his appellate attor-
Petitioner wished for him to allege and/or arguing ney for failing to file a brief in a timely manner
these issues in oral argument. Clearly, looking at caused his attorney to have an actual conflict of in-
the opinions in Culyer and Beets, this type of pos- terest in the outcome of the case because, if the
sible conflict between self-interest and the duty of case was overturned on appeal, Mathis' appellate at-
loyalty to a client is not the type of conflict con- torney would become liable for the lengthy delay
trolled by Culyer and is best examined under the that caused Mathis to spend years in prison due to
normal Strickland standard for ineffective assist- an erroneous conviction, whereas an affirmance
FN2
ance of counsel. would protect the attorney from any disciplinary ac-
tion. Mathis, 937 F.2d at 795. In Lopez, the Court
FN2. See also Moreland v. Scott, 175 F.3d ruled that a criminal defense attorney was laboring
th
347, 348 (5 Cir.) (holding that a defense under an conflict of interest during a sentencing
attorney's anticipated employment as the hearing after his client filed a motion to withdraw
district attorney did not create an actual his guilty plea in which he claimed that his plea
conflict of interest as defined in Culyer at was induced through threats and coercion from his
the time he represented Moreland at his attorney. Lopez, 58 F.3d at 40.
plea negotiations), cert. denied, __ U.S.
__, 120 S.Ct. 342, 145 L.Ed.2d 267 (1999) Even if these cases were binding on the state
; Cf. Perillo v. Johnson, 205 F.3d 775, court, which they are not, the situation in the case
th
800-801 (5 Cir.2000) (holding that an at hand does not rise to the level of conflict in
attorney's successive representation of either of these two cases. In the instant case, Peti-
multiple clients may create an actual con- tioner's appellate counsel had already filed his brief
flict of interest under Cuyler when the at- on behalf of Petitioner when Petitioner filed his
torney is placed in a position of divided motion to proceed pro se, and in his motion Peti-
loyalty between the clients.). tioner merely alleged that his counsel had not raised

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 10
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

some unspecified issues in the brief, but he did not effective, a defendant must prove by a preponder-
allege that his attorney had violated the law or his ance of the evidence both that counsel's perform-
ethical duties as a lawyer. Accordingly, because the ance was deficient and that this deficient perform-
state court's decision overruling this issue on state ance prejudiced his defense. Id. at 687. Courts,
habeas review is neither contrary to or an unreason- however, should indulge a strong presumption
able application of Supreme Court law, nor is it that counsel's conduct falls within the range of reas-
contrary to the cases cited by Petitioner in support onable assistance, and a defendant must overcome
FN3
of his claim, this claim is without merit. the presumption that an action is sound trial
strategy. Id. at 689. In the context of appeals, the
FN3. Although Petitioner's complaints Constitution does not require an appellate attorney
about his appellate attorney do not reflect to advance every conceivable argument, and it can
that his attorney was operating under an be effective assistance of counsel on appeal to fo-
actual conflict of interest as defined in cus on a few key issues. Evitts v. Lucey, 469 U.S.
Culyer, Petitioner may still argue that his th
at 394; Mayo v. Lynaugh, 882 F.2d 134, 139 (5
appellate counsel was ineffective under the Cir.1989), modified on other grounds, 920 F.2d 251
Strickland standard, which Petitioner has th
(5 Cir.1990).
done in his third ground for relief, infra.
Individual Claims of Ineffective Assistance of
C. Ineffective Assistance of Appellate Counsel Counsel
*11 In his third ground for relief, Petitioner 1. Challenges for Cause
contends that his appellate counsel was ineffective Petitioner first contends that his appellate
for failing to raise the following issues on direct ap- counsel was ineffective for failing to argue on ap-
peal: 1) whether the trial court erroneously granted peal that the trial court had erred in granting two of
two challenges for cause made by the State during the State's challenges for cause during voir dire.
voir dire; 2) whether the trial court placed improper Specifically, Petitioner asserts that appellate coun-
limitations on the questioning of prospective jurors sel should have argued on appeal that a reversal of
by defense counsel; 3) whether the trial court failed Petitioner's conviction was warranted under Adams
to follow the proper statutory jury selection proced- v. Texas, 448 U.S. 38 (1980), because the two jur-
ures; 4) whether improper hearsay testimony was ors, Allen and Ovalle, were not challengeable for
admitted during the punishment phase of the trial; cause because of their views on the death penalty.
5) whether the state's expert witness was permitted In Adams, the Supreme Court held that it was im-
to give improper opinion testimony; and 6) whether proper to exclude a juror merely because he would
a defense witness at punishment was improperly approach a death penalty case with greater care or
impeached on a collateral matter. The state habeas caution or where the decision would involve him
court denied relief on this issue as did the Court of emotionally. Adams, 448 U.S. at 49-50. The Su-
Criminal Appeals, although it did not adopt the trial preme Court has also held that a prospective juror
court's finding on this issue. may be excused for cause from a capital case when
the juror's views on the death penalty are such that
Standard of Review
they would prevent or substantially impair the per-
The federal constitution guarantees a criminal
formance of his duties as a juror in accordance with
defendant the effective assistance of counsel on ap-
his instructions and his oath. Wainwright v. Witt,
peal. Evitts v. Lucey, 469 U.S. 387, 396 (1985).
469 U.S. 412, 420 (1985); Adams, 448 U.S. at 45.
Whether counsel has been ineffective is determined
In addition, the Supreme Court stated in Wain-
by using the standard enunciated in Strickland v.
wright v. Witt that deference must be paid to the de-
Washington, 466 U.S. 668 (1984). Under the Strick-
cision to grant or deny a challenge for cause be-
land test, in order to prove that his counsel was in-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 11
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

cause he or she saw and heard the juror. 469 U.S. at agreed that it would be impossible for her to swear
425. that she would render a verdict solely on the law
and evidence in a case where the death penalty is
*12 In the instant case, during voir dire ques- involved. (SR IX:168). When defense counsel ques-
tioning by the State, Juror Ovalle testified that she tioned Allen, she stated that she thought she could
was the type of person who could not vote for the answer the punishment special issues based upon
imposition of the death penalty and that this was a the evidence, and she would not intentionally dis-
firm belief that she had held for some time. (SR regard her oath because of her opposition to the
FN4
V:150-2). She also stated that because of this death penalty. (SR IX:170). When questioned again
belief, if she was sworn in as a juror in the case, she by the State, Allen again stated that she could not
could not vote in favor of the death penalty, regard- base her verdict on the evidence where the death
less of what the evidence might be, and would in- penalty was involved. (SR IX:171).
stead automatically vote against the death penalty.
(SR V:152-3). Juror Ovalle further testified that she Jurors Ovalle and Allen both stated more than
therefore could not render a fair verdict because of once that they could not render a verdict based
her feelings about the death penalty, and these feel- solely on the evidence at trial. Although it is true
ings would substantially impair her duties as a jur- that both of them also said that they thought they
or. (SR V:154-5). When defense counsel attempted could follow their oaths and answer the punishment
to rehabilitate Juror Ovalle, she testified that she special issues based on the evidence, both when
knew she would have to take an oath as a juror, and questioned again reiterated that they could not vote
she would consider that oath a binding oath that she in such a way as to impose the death penalty. Given
must follow. Ovalle also testified that, if given an the deference that must be given to trial judges in
oath to follow the law, she would follow the law. making decisions on whether to grant challenges
She further stated that she thought she could answer for cause, the trial judge in this case was well with-
the special issues based upon the evidence, despite in his discretion in granting the State's challenges
her personal reluctance about the death penalty. for cause. Jurors Ovalle and Allen held views on
(SR V:156-8). When questioned again by the State, the death penalty that, under the standard as stated
Juror Ovalle once again stated that she could not in Wainwright v. Witt, would have substantially im-
vote to impose the death penalty. (SR V:159). The paired them from fulfilling their duties as jurors in
State made a challenge for cause against Ovalle, Petitioner's case. Because the trial judge did not ab-
and the trial court granted the challenge. (SR use his discretion in granting the State's challenges
V:155, 162). for cause to these two jurors, had this issue been
brought on direct appeal, Petitioner would not have
FN4. SR refers to the state court record prevailed. See Broxton v. State, 909 S.W.2d 912,
of Petitioner's trial. 916 (Tex.Crim.App.1995). Accordingly, Petition-
er's appellate counsel was not ineffective for failing
When questioned by the State, Juror Allen test-
to raise this claim on direct appeal.
ified that she did not believe in capital punishment
for moral and religious reasons, she felt strongly 2. Limitations on Voir Dire Questioning
about this, and had never felt differently on the sub- *13 Petitioner argues that his appellate counsel
ject. (SR IX:162-4). Allen further stated that, be- was ineffective for failing to argue on appeal that
cause of her beliefs, if she was selected as a juror the trial court erred in limiting defense counsel
she would answer the punishment special issues in questioning of one of the venire members during
order to assess life imprisonment, rather than the voir dire. After the trial court granted the State's
death penalty, regardless of the evidence that might challenge for cause against Juror Ovalle, defense
be presented at trial. (SR IX:164-7). Allen further

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 12
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

counsel made a bill of exception that, had he been was filed by defense counsel before jury selection
allowed to do so by the trial court, he would have began in Petitioner's case, alleged that the jury
asked Ovalle whether, irrespective of her personal wheel from which the venire in Petitioner's case
beliefs, if she took an oath, whether she could fol- was obtained was not composed pursuant to Section
low the law and decide the questions based upon 62.001 of the Texas Government Code, as required.
the evidence. (SR V:162-3).
Effective January 1, 1992, section 62.001 of
As noted in the previous subsection, Juror the Texas Government Code, entitled Jury Source;
Ovalle testified on direct examination by the pro- Reconstitution of Jury Wheel, was amended to
secutor that she was the type of person who could read, in applicable part, as follows:
not vote for the imposition of the death penalty and
that she this was a firm belief that she had held for (a) The jury wheel must be constituted by using,
some time. She also stated that because of this be- as the source:
lief, if she was selected as a juror she could not
(1) the names of all persons on the current
vote in favor of the death penalty, regardless of
voter registration list from all the precincts in the
what the evidence might be. After stating to defense
county; and
counsel that she would consider her oath to be bind-
ing on her and that she thought she could answer *14 (2) all names on a current list to be fur-
the punishment special issues based on the evid- nished by the Department of Public Safety, showing
ence, she once again stated, in response to ques- the citizens of the county who hold a valid Texas
tions posed by the prosecutor, that she could not driver's license and the citizens of the county, other
vote to assess the death penalty. Under Texas state than persons are disqualified from jury service, who
law, a trial judge has wide discretion over the voir hold a valid personal identification card or certific-
dire process and may impose reasonable restrictions ate issued by the department.
on this process. And a trial judge acts within his
discretion when he prevents duplicitous questions TEX. GOV'T CODE ANN. 62.001(a)
so long as the court does not limit investigation into (Vernon 1992). Prior to this change, it was not re-
proper matters during voir dire. Allridge v. State, quired that persons holding valid drivers' licenses
762 S.W.2d 146, 167 (Tex.Crim.App.1988), cert. and identification cards be included in the jury
denied, 489 U.S. 1040(1989). Given that defense wheel.
counsel had asked Ovalle essentially the same ques-
tion earlier and the fact that many of Ovalle's previ- In the motion to quash the jury panel, defense
ous answers to questions indicated that she could counsel alleged that the contents of the jury wheel
not render a verdict based on the law and evidence, was not reconstituted using the names of all persons
the trial judge did not abuse his discretion when he who held valid driver's licenses and valid personal
prevented defense counsel from asking the above identification cards. (SR I:113). Defense counsel
question. Accordingly, Petitioner's appellate coun- further alleged that, therefore, the method used to
sel was not ineffective for not raising this unmerit- select the venire for Petitioner's trial did not
orious issue on appeal. provide a fair, impartial and objective method of
selecting names of persons for jury service ... (SR
3. Jury Selection Procedure I:114). A copy of the venire for Petitioner's trial
Petitioner next argues that his appellate counsel was attached as an exhibit to this motion, but no
was ineffective for failing to argue on appeal that other evidence was presented in support of this mo-
the trial court erred in overruling defense counsel's tion. (SR I:116). The trial court denied this motion
motion to quash the jury panel. This motion, which without comment on August 3, 1992. (SR I:115;

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 13
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

SR. III:2). there was no showing at the trial court level that Pe-
titioner was prejudiced in that the jury in his case
Petitioner's appellate counsel was not ineffect- was not obtained from a fair cross-section of the
ive for not arguing on appeal that the trial court had community, Petitioner's appellate counsel was not
erred in denying this motion. First, no evidence was ineffective for not raising this unmeritorious issue
presented to the trial court, through either affidavits on direct appeal.
or testimony, that the jury wheel for Navarro
County had not been properly reconstituted pursu- 4. Admission of Evidence at Punishment Phase
ant to the new requirements of Section 62.001. Petitioner claims that his appellate counsel was
Without any evidence to support the allegation that ineffective for not arguing that the trial court admit-
section 62.001 had not been followed, Petitioner ted inadmissible hearsay evidence at the punish-
could not have prevailed on this issue on appeal. ment phase of the trial. Petitioner's wife, Stacy
Furthermore, Texas courts have consistently held Willingham (Willingham), was called as a hostile
that, to successfully challenge a criminal conviction witness by the State during the punishment phase of
based upon noncompliance with the jury selection Petitioner's trial. During her testimony, she denied
procedures, a defendant must establish that the non- that Petitioner had ever hurt her or her children or
compliance compromised the fairness of the trial. that her children were afraid of him. (SR XIV:3-5).
See Cooks v. State, 844 S .W.2d 697, 726-7 She also denied that she had ever told Karen or
(Tex.Crim.App.1992), cert. denied, 509 U.S. 927 Kim King that Petitioner had beaten her while she
(1993); Lewis v. State, 815 S.W.2d 560, 563 was pregnant in an attempt to cause a miscarriage.
(Tex.Crim.App.1991), cert. denied, 503 U.S. 920 (SR XIV:17). She further denied that Petitioner had
(1992); Tidrow v. State, 916 S.W.2d 623, 632 ever made the statement after they had separated at
(Tex.App.-Fort Worth 1996, no pet.); Calloway v. one point that it would be a good trade if she took
State, 818 S.W.2d 816, 838 (Tex.App.-Amarillo their daughter and he took the VCR. (SR XIV:20).
1991, pet. ref'd). And, in fact, in the same year that
Petitioner's case was decided on direct appeal, in Subsequently, Karen King was called by the
Lawton v. State, 913 S.W.2d 542, 554 State. She testified that she had been friends with
(Tex.Crim.App.1995), cert. denied, 519 U.S. 826 Willingham since they were children. Karen testi-
(1998), a case where the defendant made the same fied that she had seen Willingham with a busted lip,
allegation that the amended version of section two black eyes, bruises up and down her legs, and a
62.001 had not been followed in his case, the Texas red spot on her stomach. She also testified that
Court of Criminal Appeals reaffirmed this rule that Willingham told her that she believed that Petition-
the defendant had to establish actual prejudice in er had beaten her and kicked her in the stomach
order to prevail on this issue. The Court then went while she was pregnant because he wanted to cause
on to rule that, because Lawton had not established a miscarriage. (SR XIV:22-6). Kim King then testi-
any prejudice but, to the contrary, the record reflec- fied for the State. Kim testified that Willingham
ted that the panel was summoned from a fair cross- had spoken to her about Petitioner beating her
section of the county's population, the trial court while she was pregnant and that Willingham had
had not abused its discretion in denying the motion told her at one point that Petitioner had made a
to quash the venire. Id. statement that he wanted the VCR and that it would
be a fair trade for her daughter Amber. (SR
*15 Because defense counsel at trial presented XIV:28-9). Defense counsel made hearsay objec-
no evidence that section 62.001 was not followed in tions to both Karen's and Kim's statements regard-
creating the jury wheel in Petitioner's case and be- ing what Willingham told them, and these objec-
cause, even if such evidence had been presented, tions were overruled. (SR XIV:24, 26, 29).

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 14
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

Petitioner claims that the testimony given by not raising this issue on appeal.
Karen and Kim King regarding any statements
Willingham made to them was inadmissible *16 The testimony given by Karen King re-
hearsay. It is clear that any testimony Karen and garding the statement that Petitioner allegedly made
Kim King gave regarding Willingham's appearance to his wife was, however, inadmissible hearsay, be-
was not hearsay as they could testify about their cause Willingham denied that Petitioner had ever
personal observations. Karen King's testimony made this statement, but never denied that she had
about what Willingham had told her regarding the made such a statement. Thus, this statement is
reason she thought Petitioner had beaten her while double hearsay that was not admissible for purposes
she was pregnant was hearsay, but under Texas law of impeachment and does not fit into a hearsay ex-
FN6
the State was entitled to elicit this testimony for ception. Nevertheless, had this issue been
purposes of impeaching Willingham's testimony raised on appeal, it would have been subject to a
that she never made this statement to either of the harmless error analysis under Rule 81(b)(2) of the
Kings. See TEX.R. EVID. 613(a) (formerly the Texas Rules of Appellate Procedure (now rule
Texas Criminal Rules of Evidence). Under Rule 44.2). In determining whether an error is harmless
105 of the Texas Rules of Evidence, defense coun- beyond a reasonable doubt, an appellate court must
sel would have been entitled to have the trial court focus upon whether the error contributed to a de-
instruct the jury that this testimony by Karen King fendant's conviction or punishment. Ethridge v.
was for the limited purpose of impeaching Willing- State, 903 S.W.2d 1, 11 (Tex.Crim.App.1994), cert.
ham's testimony, but defense counsel did not re- denied, 516 U.S. 920 (1995). Under this harmless
quest such an instruction and, in the absence of error analysis, the question that must be answered
such a request, the admission of such evidence is whether a rational trier of fact might have
without limitation cannot be a ground for complaint reached a different result if the error had not oc-
on appeal. See TEX.R. EVID. 105(a); Garcia v. curred. Harris v. State, 790 S.W.2d 568, 588
State, 887 S .W.2d 862, 878 (Tex.Crim.App.1994), (Tex.Crim.App.1989). Given that, in addition to the
cert. denied, 514 U.S. 1021 (1995). Thus, appellate horrific nature of the crime itself, the jury heard
counsel was not ineffective for not raising this issue evidence at the punishment phase of the trial of Pe-
FN5 titioner's extensive criminal background, a state-
on appeal.
ment he made in which he bragged about killing a
FN5. The prosecutor in this case failed to dog, the other testimony given by the Kings regard-
follow all of the requirements of Texas ing Willingham's appearance after being beaten by
Rule of Evidence 613(a) when confronting Petitioner, and testimony by a neighbor who wit-
a witness with a prior inconsistent state- nessed Petitioner slap his wife and once helped
ment, as he told Stacy Willingham to Willingham call the police because of her concern
whom she made the statement and the con- about Petitioner's violence (SR XIV:67-8), it cannot
tents of the statement, but did not tell her be said that the jury would have reached a different
the time when and the place where the decision on punishment had there not been testi-
statement was made. See TEX.R. EVID. mony given about one comment that Petitioner al-
613(a). Nevertheless, although Petitioner's legedly made about preferring a VCR to his daugh-
federal habeas counsel does not argue this ter. Because any error in admitting this testimony
point, because trial defense counsel did not was harmless, Petitioner has failed to establish any
object that the prosecutor had not laid the prejudice because appellate counsel did not raise
proper predicate for impeaching Stacy this issue on appeal.
Willingham, error was not preserved, and
appellate counsel was not ineffective for FN6. While Petitioner's statement about

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 15
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

the VCR might be considered as fitting in- regarding his opinion about the story Petitioner told
to the exception to the hearsay rule of a him was improper expert testimony because it not
statement against interest, see TEX.R. only embraced an ultimate issue in the case, but it
EVID. 803(24), Stacy Willingham's state- decided an ultimate fact for the jury. Under Rule
ment itself as recounted by Kim King does 702 of the Texas Rules of Evidence (formerly the
not fit into any hearsay exception. Texas Rules of Criminal Evidence), scientific, tech-
nical and other specialized expert testimony is ad-
5. Admission of Expert Testimony missible if it will assist the jury to determine a fact
Petitioner further contends that his appellate at- in issue and/or understand the evidence. TEX.R.
torney was ineffective for not arguing on appeal EVID. 702. And, testimony in the form of an opin-
that the trial court erred in admitting expert testi- ion otherwise admissible is not objectionable even
mony at trial. During the guilt phase of the trial, though it embraces an ultimate issue to be decided
Manuel Vasquez, a deputy state fire marshall and by the trier of fact. TEX.R. EVID. 704. According
arson investigator, testified for the State as an ex- to Texas case law, however, expert testimony may
pert witness. Vasquez testified that, based upon the not decide an ultimate fact for the jury, and an ex-
burn patterns and pour patterns on the floor in the pert cannot testify regarding the truthfulness of a
front bedroom and the hallway and the stains on the particular witness who testified at trial. Rather, the
concrete front porch, in his expert opinion the fire use of expert testimony should be limited to situ-
was set intentionally with the use of an accelerant.. ations in which the expert's knowledge and experi-
(SR XI:238, 246-9, 255). Vasquez also testified that ence are beyond that of an average juror. Yount v.
he did not believe that Petitioner's two-year-old State, 872 S.W.2d 706, 710-11
child could have started the fire because, in his (Tex.Crim.App.1993); Duckett v. State, 797 S.W.2d
opinion, the accelerant liquid was deliberately 906, 914 (Tex.Crim.App.1990).
poured throughout the hallway and the bedroom
and because the fire was started in three different Vasquez' testimony that, in his opinion, the fire
places. (SR XI:261-2). Vasquez further testified was intentionally set using an accelerant was proper
that Petitioner had told him that his daughter had expert testimony because that opinion was based on
awakened him while he was sleeping, the bedroom his special knowledge about fires and their causes.
was full of smoke, he kicked open the door with his Likewise, Vasquez' testimony that the story Peti-
bare foot, and he ran down the hallway and out of tioner told him about escaping the fire through the
the door. (SR XI:260-2). Vasquez then testified hallway was a fabrication was also admissible opin-
that, in his opinion, Petitioner's story was not true ion testimony. Although this opinion did embrace
because Petitioner could not have exited the house an ultimate issue, it was not testimony regarding
after it was on fire and smoke had reached his bed- the veracity of a witness because Petitioner did not
room without injury to his feet or substantial smoke testify at trial. Instead, Vasquez testified that, based
inhalation damage. (SR XI:265-7). Finally, upon his specialized knowledge which the average
Vasquez testified that, contrary to Petitioner's story, juror would not possess, in his opinion Petitioner
Vasquez believed that Petitioner had intentionally could not have exited the house through the hall-
set the fire. (SR XI:268). Defense counsel objected way and not sustained substantial injuries to his
that Vasquez' opinion regarding the truth of Peti- feet, and therefore the story he told Vasquez was
tioner's story and his opinion that Petitioner set the not correct.
fire were based on speculation. (SR XI:258, 260,
267-8). Vasquez' opinion testimony regarding Petition-
er's guilt, however, was impermissible expert testi-
*17 Petitioner argues that Vasquez' testimony mony because it invaded the jury's province as the

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 16
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

decision maker regarding guilt or innocence. There- argument was his testimony about the symptoms of
fore, the trial court erred in admitting this opinion smoke inhalation, and no mention was made of his
testimony into evidence. But, had this issue been testimony regarding the story Petitioner had told
raised on appeal to the Court of Criminal Appeals, him about what had occurred. (R. XIII:41). Finally,
the Court would have conducted a harmless error in addition to the one inadmissible opinion given by
analysis to determine whether this inadmissible Vasquez, he also gave admissible opinion testi-
opinion contributed to Petitioner's conviction, by mony that a child could not have set this fire and
looking at the source and nature of the error, the ex- that Petitioner's story of what occurred did not
tent to which it was emphasized by the State, how match the physical evidence and was contradicted
much weight a juror would place on the inadmiss- by his lack of injuries.
ible evidence, and its collateral implications. See
TEX R.APP. PROC. 81(b)(2); Lockhart v. State, Given all of the other evidence supporting the
847 S.W.2d 568, 570 (Tex.Crim.App.1992), cert. jury's guilty verdict and the absence of any emphas-
denied, 510 U.S. 849 (1993). And overwhelming is on the objectionable expert testimony, it cannot
evidence of guilt can be a factor in the evaluation of be said that this error contributed to Petitioner's
whether an error was harmless error. Harris v. guilt. Accordingly, Petitioner has failed to meet
State, 790 S.W.2d at 587. both prongs of the Strickland test because the opin-
ion testimony to which he objects was either ad-
*18 In the instant case, there was substantial missible or harmless. Thus, Petitioner cannot estab-
circumstantial evidence of Petitioner's guilt, includ- lish any prejudice in his appellate counsel's failure
ing: the uncontroverted expert testimony from two to raise this issue on appeal.
fire experts that an accelerant was used to start the
fire intentionally (SR XI:163, 168, 248-51, 256-8); 6. Impeachment on a Collateral Matter
Petitioner's refusal to try and save his children dur- Finally, Petitioner contends that his appellate
ing the fire (SR XI:19, 58-9, 88); Petitioner's lack counsel was ineffective for failing to argue on ap-
of concern or grief in the hospital after the fire (SR peal that one of the defense witnesses at the punish-
XI:89-92, 142-3); the absence of any substantial in- ment phase of the trial was improperly impeached
juries to Petitioner (SR XI:117, 145-7); Petitioner's on a collateral matter. Amy O'Shea testified for the
carefree attitude one day after the fire (SR XI:63-5, defense at the guilt phase of Petitioner's trial. On
106); Petitioner's statement to the arson investigat- cross-examination, the prosecutor asked O'Shea
ors on the day of the children's funeral that they whether she was present at the hospital when the
might find something on the floor of the twins' bed- Petitioner and his wife switched urine samples. De-
room because he poured cologne in there at one fense counsel objected that this question assumed
point (SR XI:132); Petitioner's attempt on that same facts that were not in evidence, and this objection
day to enlist the help of these same investigators in was overruled. O'Shea responded that she had no
finding his dartboard in the ruins of the house (SR knowledge that anything like that had happened.
XI:130); and finally the fact that a container con- (SR XII:122-3). Subsequently, Carl Jones testified
taining traces of kerosene was found on the porch for the State on rebuttal that Petitioner had told him
and a similar petroleum distillate was found on the that his wife had provided a urine sample for Peti-
wood threshold of the front door (R. XI: 215-221). tioner. (SR XII:140). Defense counsel objected to
Furthermore, there was testimony given that Peti- this testimony on the basis that it was improper re-
tioner confessed to a fellow jailhouse inmate that he buttal testimony. (SR XII:141-2).
started the fire in order to hide recent child abuse.
*19 Citing Alexander v. State, 740 S.W.2d 749
(SR XI:18-9, 46). Moreover, the only portion of
(Tex.Crim.App.1987), and Ramirez v. State, 802
Vasquez' testimony mentioned in the State's closing
S.W.2d 674 (Tex.Crim.App.1990), Petitioner al-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 17
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

leges that the State impermissibly impeached the consciousness of guilt. Furthermore, Carl Jones'
witness O'Shea on the collateral matter of his wife testimony that Petitioner told him that he commit-
providing a urine specimen for Petitioner. Petition- ted this extraneous bad act was not inadmissible
er then asserts that his appellate counsel was inef- hearsay because Petitioner's statement was an ad-
fective for failing to raise this issue on direct ap- mission by a party opponent. See TEX.R. EVID.
peal. Under Texas law, a party cannot impeach a 801(d)(2). Thus, because evidence that Petitioner
witness on a collateral matter, and a collateral mat- had his wife provide a urine specimen for him was
ter is evidence that would be inadmissible in the admissible evidence during the guilt/innocence
party's case-in-chief. Ramirez, 802 S.W.2d at 675. phase of Petitioner's trial, Petitioner's appellate
The prosecutor in this case, however, did not im- counsel was not ineffective for not raising this issue
peach O'Shea, and the matter was not collateral. on appeal.

In her testimony on direct examination, O'Shea Furthermore, even if this evidence was inad-
testified that she babysat for Petitioner and his wife missible, Petitioner cannot establish that he was
in the past and had noticed a kerosene lamp in the prejudiced by his attorney's failure to raise this is-
house. (R. XII:120-1). On cross-examination, sue on appeal because error was not properly pre-
O'Shea testified in response to the prosecutor's served on the trial level. Under Texas law, when
questions that she was Petitioner's wife's cousin and evidence of an extraneous act is offered, opposing
that she had been at the hospital and had been in counsel must timely and properly object in order to
Petitioner's room. The prosecutor then asked her preserve error. McLennan v. Benson, 877 S.W.2d
st
whether she was there when Petitioner switched ur- 454 (Tex.App.-Houston [1 . Dist.] 1994, no writ).
ine specimens. (R. XII:121-3). This question did Defense counsel objected that the question regard-
not impeach and was not an attempt to impeach ing the urine specimen assumed facts not in evid-
O'Shea as it did not attempt to call into question the ence and that evidence of the urine sample was im-
truthfulness of her testimony that she babysat for proper rebuttal testimony, but did not object that
the family and saw a kerosene lamp at the house, this was an extraneous act offered for improper pur-
but instead was a question about her knowledge of poses. Because trial counsel did not preserve error
a particular matter. on this issue, appellate counsel could not have pre-
vailed on this issue on appeal. Therefore, appellate
Moreover, this was not a collateral matter. Oth- counsel was not ineffective for not raising this issue
er wrongs or bad acts are not admissible to prove on appeal, and Petitioner was not prejudiced be-
the character of the defendant, but may be admiss- cause this issue was not raised on appeal.
ible to prove motive, opportunity, intent, or prepar-
ation, and such acts may also be admissible to Conclusion
prove consciousness of guilt. See TEX.R. EVID. *20 Petitioner's appellate counsel alleged four
404(b); Peoples v. State, 874 S.W.2d 804, 809 points of error on direct appeal, arguing that: the
(Tex.App.-Fort Worth 1994, pet. ref'd). Prior to evidence was insufficient to support the jury's an-
resting its case-in-chief in Petitioner's trial, the swer to the punishment special issues; the trial
State established through the testimony of an emer- court erred in denying the defense motion to change
gency room doctor that the urine specimen obtained venue; the trial court erred in refusing to admit im-
from Petitioner was an unsupervised test. (SR peachment testimony; and the trial court erred in
XII:117-8). Petitioner's apparent attempt to conceal declining to instruct the jury on parole law. See
drug and/or alcohol use immediately after the death Willingham, 897 S.W.2d at 354. Petitioner's appel-
of his three daughters in a fire he escaped with late counsel was not ineffective under the test set
minor injuries is arguably relevant as evidence of forth in Strickland v. Washington for failing to raise

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 18
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

any of the six issues Petitioner contends he should bor, John Bailey, testified that he had witnessed Pe-
have raised. Either the claims themselves are titioner slap his wife, had heard Petitioner on anoth-
without merit or Petitioner cannot show that there is er occasion tell his wife to get up bitch, and I'll hit
a reasonable probability that counsel's failure to you again, and had allowed Stacy Willingham to
raise the issues on direct appeal would have af- call the police from his house one time when she
fected the outcome of his direct appeal. Because and Petitioner were fighting. (SR XIV:66-8). Given
Petitioner has not established that his appellate that this admissible evidence regarding Petitioner's
counsel was ineffective, the state court's denial of abusive behavior towards his wife was admitted in-
this ground for relief was not an unreasonable ap- to evidence at the punishment phase of the trial,
plication of federal law. This ground for relief is hearsay testimony that Stacy Willingham told a
without merit. friend that she believed that Petitioner beat her in
order to cause a miscarriage or hearsay testimony
D. Evidence Admitted at the Punishment Phase that Petitioner once said that a VCR was an even
In his fourth ground for relief, Petitioner claims trade for his daughter did not so infect the punish-
that he was sentenced to death in violation of the ment phase of Petitioner's trial as to render Petition-
Eighth and Fourteenth Amendments because inad- er's death sentence a violation of the federal consti-
missible evidence was admitted at the punishment tution. Accordingly, the state court's denial of relief
phase of his trial. Specifically, Petitioner refers to on this ground was not an unreasonable application
his allegations in the previous ground for relief that of federal law, and this ground is therefore without
inadmissible hearsay evidence regarding Petition- merit.
er's abusive relationship with his wife and children
was admitted into evidence at the punishment phase E. Appellate Review of Mitigation Special Issue
FN7
of the trial. Citing numerous Supreme Court *21 In his fifth ground for relief, Petitioner
cases, Petitioner claims that the admission of this claims that the Texas death penalty scheme is un-
evidence infected the sentencing proceeding with constitutional as applied because the Court of Crim-
unfairness that rendered the imposition of the death inal Appeals does not conduct a sufficiency review
penalty a denial of Petitioner's due process. Al- of the mitigation special issue, and this lack of ap-
though it did not adopt the trial court's finding on pellate review provides capital juries with unconsti-
this issue, the Court of Criminal Appeals denied re- tutionally unfettered discretion in assessing or
lief on this ground for review when it was raised in choosing not to assess the death penalty. Pursuant
Petitioner's state habeas application. to Article 37.071 of the Texas Code of Criminal
Procedure, the jury was required to answer the fol-
FN7. Petitioner also mentions the admis- lowing two special issues at the punishment phase
sion of Manuel Vasquez' expert testimony of Petitioner's trial:
and the testimony regarding Petitioner's ur-
ine specimen. This evidence, however, was Do you find from the evidence, beyond a reas-
admitted in the guilt phase of the trial. onable doubt, there is a probability that the de-
fendant would commit criminal acts of violence
Evidence of Petitioner's abusive relationship that would constitute a continuing threat to soci-
with his wife was admitted into evidence other than ety?
through inadmissible hearsay. Karen King testified
that she saw Petitioner's wife with a busted lip, Do you find, taking into consideration all of the
two black eyes and bruises all over her body (SR evidence, including the circumstances of the of-
XIV:26), and Kim King testified that she had per- fense, the defendant's character and background,
sonal knowledge that Petitioner regularly beat his and the personal moral culpability of the defend-
wife (SR XIV:28). Furthermore, Petitioner's neigh- ant, there is a sufficient mitigating circumstance

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 19
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

or circumstances to warrant that a sentence of life had to be guided by standards so that the sen-
imprisonment rather than a death sentence be im- tencing authority would focus on the particu-
posed? larized circumstances of the crime and the
defendant. But as we made clear in Gregg,
(SR I:158-9). The Court of Criminal Appeals so long as the class of murderers subject to
conducted a sufficiency review of the jury's answer capital punishment is narrowed, there is no
to the future dangerousness special issue in Peti- constitutional infirmity in a procedure that
tioner's case on direct appeal, see Willingham, 897 allows a jury to recommend mercy based on
S.W.2d at 354-6, but has consistently held that a the mitigating evidence introduced by a de-
sufficiency review of the mitigating special issue is fendant.
both inappropriate and not constitutionally re-
quired. See Colella v. State, 915 S.W.2d 834 *22 Penry, 492 U.S. at 326-7 (quoting Gregg v.
(Tex.Crim.App.1995). Petitioner contends, Georgia, 428 U.S. 153, 199 (1976) (joint opinion of
however, that the absence of appellate review of the Stewart, Powell, and Stevens, JJ.)).
mitigation special issue violates his constitutional
rights under the Eighth and Fourteenth Amend- Subsequently, in Tuilaepa v. California, 512
ments because it gives a capital jury the open-ended U.S. 967, 974 (1994), the Supreme Court noted
discretion to impose the death penalty that was pro- that, [i]n providing for individualized sentencing,
hibited by the Supreme Court in Furman v. Geor- it must be recognized that the States may adopt cap-
gia, 408 U.S. 238 (1972). ital sentencing processes that rely upon the jury, in
its sound judgment, to exercise wide discretion.
The mitigation special issue was added by the And, citing Zant v. Stephens, 462 U.S. 862, 875
Texas legislature in response to the Supreme (1983), the Court in Tuilaepa specifically stated
Court's decision in Penry v. Lynaugh, 492 U.S. 302 that a sentencer may be given unbridled discretion
(1989). See Shannon v. State, 942 S.W.2d 591, 598 in determining whether to impose the death penalty
(Tex.Crim.App.1996). In Penry, the Supreme Court once it is determined that the defendant is a mem-
held that the jury in Penry's capital murder trial was ber of the class that is eligible to receive the death
unable to consider Penry's mitigating evidence of penalty. Tuilaepa, 512 U.S. at 979-980. Thus, Su-
mental retardation and childhood abuse through the preme Court precedent has clearly held that the mit-
special issues as they existed at that time, because a igation special issue is constitutionally acceptable.
juror could have believed that Penry committed the
murder deliberately and that he would be a future Nonetheless, Petitioner contends that appellate
danger to society and also believed that he should review of the sufficiency of the evidence to support
not be executed because of his retardation and the a negative answer to this special issue is constitu-
abuse he suffered, but would have been unable to tionally required. The Supreme Court has held that
vote to spare his life. 492 U.S. at 322-5. And, in re- the Constitution does not require any appellate pro-
sponse to the State's argument that a special mitiga- portionality review of a death sentence (either with
tion issue would return to unbridled discretion on other cases in which the defendants received the
the jury's part, an argument similar to the argument death penalty or with cases in which defendants did
Petitioner makes here, the Supreme Court disagreed not receive the death penalty) where the statutory
and stated that: procedure adequately channels the sentencer's dis-
cretion. And the Supreme Court has specifically
To be sure, Furman held that in order to stated that Texas has a statutory scheme that ad-
minimize the risk that the death penalty equately channels the sentencer's discretion. See
would be imposed on a capriciously selected McCleskey v. Kemp, 481 U.S. 279, 306-7 (1987);
group of offenders, the decision to impose it Pulley v. Harris, 465 U.S. 37, 50-1 (1984).

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 20
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

Recently, in Hughes v. Johnson, 191 F.3d 607 tion. Nonetheless, the Court held that the mitiga-
th
(5 Cir.1999), cert. denied, __ U.S. __, 120 S.Ct. tion special issue was constitutionally required by
1003, 145 L .Ed.2d 945 (2000), the Fifth Circuit ap- Penry and was not unconstitutional merely because
plied Pulley v. Harris in a case in which the peti- a sufficiency review is not possible. Id. at 599.
tioner argued that the Fourth and Eighth Amend-
ments required that the mitigating evidence in his FN8. This finding with regard to ground
case be examined independently on appeal in or- thirteen in Petitioner's state habeas applica-
der to determine whether or not the petitioner was tion was one of the findings that was adop-
death-worthy. The Fifth Circuit rejected this argu- ted by the Court of Criminal Appeals.
ment, stating that Hughes' argument was an argu-
*23 Because Supreme Court precedent does not
ment, in essence, for a proportionality review of his
dictate that appellate review of mitigating evidence
case as compared to other death penalty cases, be-
is constitutionally required, the state court's denial
cause implicit in his argument was that other death
of this ground for relief based upon these Court of
penalty defendants did not have the same amount or
Criminal Appeals' precedents was not a decision
type of mitigating evidence as he did. The Fifth
contrary to clearly established federal law. This
Circuit therefore held that, pursuant to Pulley v.
ground for relief is without merit.
Harris, an independent appellate review of mitigat-
ing evidence was not constitutionally required. F. Whether the Absence of a Parole Instruction vi-
Hughes, 191 F.3d at 621-3. Thus, neither Supreme olated Petitioner's Eighth Amendment and Due Pro-
Court precedent nor Fifth Circuit interpretation of cess Rights
these precedents dictates that Petitioner was entitled In his sixth ground for relief, Petitioner claims,
to appellate review of the sufficiency of the evid- in essence, that the trial court violated his Eighth
ence to support the jury's decision not to dispense Amendment and due process rights by refusing to
mercy in his case. instruct the jury in his case regarding his parole eli-
FN9
gibility if given a life sentence. The Texas
The state habeas court made a finding that this
Court of Criminal Appeals addressed this issue on
ground for relief, when alleged by Petitioner at the
appeal in the context of whether the trial court viol-
state level, was not supported by the law, and cited
ated Petitioner's Eighth Amendment rights because
McFarland v. State, 928 S.W.2d 482
parole was a mitigating circumstance that Petitioner
(Tex.Crim.App.1996), cert. denied, 519 U.S. 1119
was entitled to present to the jury. On direct appeal,
(1997), Shannon v. State, 942 S.W.2d 591
the Court of Criminal Appeals overruled this claim,
(Tex.Crim.App.1996), and Pondexter v. State, 942
holding that parole eligibility is not a proper con-
S.W.2d 577 (Tex.Crim.App.1996), cert. denied,
sideration for the jury's deliberations on punish-
522 U.S. 825 (1997), as support for this finding.
FN8 ment. Willingham, 897 S.W.2d at 358-9.
In McFarland and in Pondexter, the Court of
Criminal Appeals declined to review the suffi- FN9. Petitioner submitted a written request
ciency of the evidence to support the negative an- to the trial court that the jury be instructed
swer to the mitigation special issue because the regarding Petitioner's parole eligibility.
weighing of mitigating evidence is a subjective de- This request was denied by the trial court,
termination by each individual juror. McFarland, and the jury received no instruction regard-
928 S.W.2d at 498; Pondexter, 942 S.W.2d at 587. ing parole. (SR I:151, 155-7). At the time
In Shannon, the Court of Criminal Appeals held that Petitioner committed this offense, the
that the mitigation special issue could not be re- law in Texas was that a person who re-
viewed for sufficiency of the evidence on appeal ceived a life sentence would be eligible for
because would amount to an exercise in specula- parole in thirty-five years. See TEX.CODE

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 21
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

CRIM. PROC. ANN. art. 42.18 8(b)(2) decision on direct appeal, based on the decision in
(Vernon Supp.1991). Simmons and subsequent case law interpreting Sim-
mons, Petitioner cannot show that the Court of
In making this claim in his federal petition, Pe- Criminal Appeal's decision on direct appeal was
titioner relies on the Supreme Court case Simmons contrary to clearly established federal law. Accord-
v. South Carolina, 512 U.S. 154 (1994). Simmons is ingly, this ground for relief is without merit.
a death penalty case in which a plurality of the Su-
preme Court held that, where a defendant's future G. Whether the Absence of a Parole Instruction vi-
dangerousness is an issue in a capital case, and the olated Petitioner's Equal Protection Rights
sentencing options are death or life without the pos- In his seventh ground for relief, Petitioner
sibility of parole, due process allows the defendant claims that the Texas Death Penalty Scheme viol-
to inform the sentencing jury about his parole in- ated his equal protection rights because he was pro-
eligibility. Id. at 156. Petitioner argues that Sim- hibited from instructing the jury in his case regard-
mons is applicable to his case because, had he re- ing his parole eligibility, whereas Texas statutory
ceived a life sentence, he would not have been eli- law requires that juries in non-capital cases be in-
gible for parole for thirty-five years, a time period structed regarding parole eligibility. Respondent ar-
Petitioner asserts is comparable to a life sentence gues in response that Petitioner is procedurally
without parole. barred from raising this claim because he has failed
to exhaust his state claims and because the Texas
Contrary to Petitioner's argument, however, the Court of Criminal Appeals would now find that this
plurality opinion in Simmons specifically limited its claim has been procedurally defaulted. Respondent
holding to cases where the sentencing option is further contends that even if the claim is considered
between death and life without parole. Justice on its merits, it fails.
Blackmun, writing for the Court, went further and
stated that [i]n a State in which parole is available, Procedural default occurs when a petitioner
how the jury's knowledge of parole availability will fails to exhaust all available state remedies and the
affect the decision whether or not to impose the state court to which he would be required to peti-
death penalty is speculative, and we will not lightly tion would now find that the claim is procedurally
second-guess a decision whether or not to inform a defaulted. Bledsoe v. Johnson, 188 F.3d 250, 254 (5
th
jury of information regarding parole. Id. at 168. Cir.1999). In his state writ of habeas corpus, Pe-
And the opinion also noted that, differing from titioner raised sixteen grounds for relief. None of
South Carolina, Texas has no life-without-parole these grounds alleged any error regarding the fact
sentencing option. Id. at 168, n. 8. Moreover, since that the jury did not receive an instruction on parole
the Supreme Court's decision in Simmons, the Fifth eligibility. (State Habeas Petition at i-iii).
Circuit has held that a trial court does not violate a Moreover, although Petitioner raised the issue of
Texas capital murder defendant's Eighth Amend- the absence of a parole eligibility jury instruction
ment rights or due process rights by refusing to in- on direct appeal to the Texas Court of Criminal Ap-
struct the jury regarding parole eligibility because peals, he argued that the exclusion of this instruc-
Simmons does not apply in Texas cases, but only in tion violated his Eighth Amendment rights. Peti-
cases where life-without-parole is a sentencing op- tioner did not argue on direct appeal, however, that
th
tion. Miller v. Johnson, 200 F.3d 274 (5 his equal protection rights were violated by the ab-
th
Cir.2000); Allridge v. Scott, 41 F.3d 213, 222 (5 sence of such an instruction. Therefore, Petitioner
Cir.1994). has failed to exhaust his state remedies on this is-
FN10
sue.
*24 Therefore, although the Court of Criminal
Appeals did not specifically address Simmons in its FN10. The exhaustion requirement is satis-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 22
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

fied when the substance of the federal it fails. Petitioner contends that, because at the time
claim has been fairly presented to the of his trial in 1992 Article 37.07 4 of the Texas
highest state court, but it is not satisfied if Code of Criminal Procedure, the statute governing
the federal petition presents a new legal the sentencing of non-capital defendants, contained
theory or a new factual claim. See White- a provision requiring that juries in non-capital cases
th
head v. Johnson, 157 F.3d 384, 387 (5 be instructed regarding parole eligibility, but it spe-
Cir.1998), citing Picard v. Conner, 404 cifically excluded capital cases from this require-
U.S. 270, 275-8 (1971). ment, Petitioner's equal protection rights were viol-
FN12
ated . The Fifth Circuit, however, has held
Furthermore, were this claim now brought in a that capital defendants are not members of a sus-
subsequent state writ of habeas corpus, the Court of pect class for equal protection purposes. Woods v.
Criminal Appeals would consider this claim to be th
Johnson, 75 F.3d 1017, 1036 (5 Cir.), cert.
procedurally defaulted under Article 11.071 5 of denied, 117 S.Ct 150 (1996); Thompson v.
the Texas Code of Criminal Procedure, which pro- th
Lynaugh, 821 F.2d 1054, 1062 (5 Cir.), cert.
hibits a claim from being raised in a subsequent denied, 483 U.S. 1035 (1987). Therefore, the legis-
habeas application unless: 1) it could not have been lation classification should be upheld so long as it
raised in the previous application because the factu- is rationally related to a legitimate state interest.
al or legal basis was unavailable at the time; or 2) Heller v. Doe, 509 U.S. 312, 319-20 (1993); City of
the claim contains sufficient facts establishing that, Cleburne, Tex. v. Cleburne Living Center, 473 U.S.
but for a violation of the United States Constitution, 432, 440 (1985).
no rational juror would have found Petitioner guilty
or would have answered the punishment issues in FN12. See TEX.CODE CRIM. PROC.
the State's favor. See TEX.CODE CRIM. PROC. ANN. art. 37.07 4(a) (Vernon
ANN. art 11.071 5(a) (Vernon Supp.1999). Supp.1992). Article 37.071 of the Texas
Clearly, the legal claim presented in this ground for Code of Criminal Procedure, the article
relief was available to Petitioner at the time he filed which addresses the procedure used in cap-
his state habeas application, and Petitioner has ital cases, now contains a provision permit-
presented no facts that would establish that, even if ting capital defendants to instruct juries re-
it were a constitutional violation to exclude a jury garding parole eligibility if they so desire.
instruction on parole eligibility, no rational juror This provision was not, of course, in exist-
would have sentenced him to death if such an in- ence at the time of Petitioner's trial. See
struction had been given. Accordingly, because Pe- TEX.CODE CRIM. PROC. ANN. art.
titioner has failed to exhaust his state remedies with 37.071 2(e)(2) (Vernon Supp.2000).
regard to this claim, and because the Court of Crim-
inal Appeals, if presented with a successive state As argued by Respondent, the State of Texas
habeas petition on this claim, would find it barred has a legitimate state interest in limiting a jury's re-
under article 11.071 5(a), Petitioner is procedur- liance on parole eligibility as a factor in sentencing
ally barred from raising this ground for relief in a a capital defendant if this reliance may, in fact, be
FN11 detrimental to a capital defendant who will become
federal petition for writ of habeas corpus.
parole eligible at some point if given a life sen-
FN11. Petitioner fails to allege, much less tence. Therefore, there is a rational basis for a stat-
argue, any cause and prejudice for failing ute that requires that non-capital juries be instructed
to present this claim in state court. about parole eligibility but does not require this in-
struction in capital trials. Because Texas' different
*25 Moreover, even if this issue were con- treatment of capital defendants is rationally related
sidered on its merits, as permitted under 2254(2),

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 23
Not Reported in F.Supp.2d, 2001 WL 1677023 (N.D.Tex.)
(Cite as: 2001 WL 1677023 (N.D.Tex.))

to a legitimate state interest, Petitioner's equal pro-

tection rights were not violated when the trial court
refused to instruct the jury in his case regarding pa-
role eligibility. This ground is both procedurally
barred and without merit.

RECOMMENDATION
Petitioner has failed to make a substantial
showing of the denial of a federal right. The state
court adjudication on the merits neither resulted in
a decision that was contrary to, or involved an un-
reasonable application of, clearly established Feder-
al law, as determined by the Supreme Court of the
United States, nor resulted in a decision that was
based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding. Petitioner's petition for a writ of habeas
corpus should be DENIED.

N.D.Tex.,2001.
Willingham v. Johnson
Not Reported in F.Supp.2d, 2001 WL 1677023
(N.D.Tex.)

END OF DOCUMENT

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 1
61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.)))

I
This case was not selected for publication in the On December 23, 1991, Willingham's one-
Federal Reporter. year-old twin daughters and his two-year-old
daughter died of smoke inhalation when the fam-
Not for Publication in West's Federal Reporter See ily's residence burned. Willingham, who escaped
Fed. Rule of Appellate Procedure 32.1 generally the burning residence, was charged with capital
governing citation of judicial decisions issued on or murder of the children. The State presented evid-
after Jan. 1, 2007. See also Fifth Circuit Rules ence, including Willingham's confession to an in-
28.7, 47.5.3, 47.5.4. (Find CTA5 Rule 28 and Find mate, that Willingham poured an accelerant on the
CTA5 Rule 47) floor of the twins' bedroom, the floor of the hallway
outside their bedroom, and around the front door
United States Court of Appeals,
and lit three separate fires. There was also evidence
Fifth Circuit.
that, before setting the fires, he burned his two-
Cameron Todd WILLINGHAM, Petitioner-Appel-
year-old daughter's arm and forehead so as to make
lant,
it appear that the fire was caused by the child play-
v.
ing with fire.
Janie COCKRELL, Director, Texas Department of
Criminal Justice, Institutional Division, Respond- The jury found Willingham guilty of capital
ent-Appellee. murder. He was sentenced to death based on the
jury's affirmative answer to the special punishment
No. 02-10133.
issue on future dangerousness and its negative an-
Feb. 17, 2003.
swer to the special punishment issue on mitigating
Appeal from the United States District Court for the circumstances. The Texas Court of Criminal Ap-
Northern District of Texas. USDC No.: peals affirmed his conviction and sentence on direct
3:98-CV-409-L. appeal, and the Supreme Court denied certiorari.
Willingham v. State, 897 S.W.2d 351
Before JOLLY, SMITH, and BENAVIDES, Circuit (Tex.Crim.App.), cert. denied, 516 U.S. 946, 116
Judges. S.Ct. 385, 133 L.Ed.2d 307 (1995).

FN1 In December 1996, Willingham filed an applic-

E. GRADY JOLLY, CIRCUIT JUDGE: ation for state habeas relief. The Texas Court of
Criminal Appeals adopted the trial court's recom-
FN1. Pursuant to 5TH CIR. R. 47.5, the
mendation that relief be denied, and the Supreme
Court has determined that this opinion
Court denied certiorari. Ex parte Cameron Todd
should not be published and is not preced-
Willingham, No. 35,162 (Tex.Crim.App. Oct. 1,
ent except under the limited circumstances
1997), cert. denied, 524 U.S. 917, 118 S.Ct. 2299,
set forth in 5TH CIR. R. 47.5.4.
141 L.Ed.2d 159 (1998).
*1 Cameron Todd Willingham was convicted
Willingham filed a petition for federal habeas
of capital murder and sentenced to death. He seeks
relief in April 1998. The magistrate judge recom-
a Certificate of Appealability (COA) to appeal
mended that relief be denied. The district court
the district court's denial of federal habeas relief.
overruled Willingham's objections to the magistrate
For the reasons that follow, we DENY a COA.
judge's report and recommendation and denied re-
lief. Willingham v. Johnson, 2001 WL 1677023

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 2
61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.)))

(N.D.Tex. Dec.31, 2001). The district also denied *2 To obtain a COA, Willingham must make a
Willingham's request for a COA. substantial showing of the denial of a constitutional
right. 28 U.S.C. 2253(c)(2). To make such a
II showing, he must demonstrate that reasonable jur-
He has now filed in this court his Application ists could debate whether (or, for that matter, agree
for Certificate of Appealability, in which he lists that) the petition should have been resolved in a
eight issues: (1) whether his right to due process different manner or that the issues presented were
was violated when he was denied the right to rep- adequate to deserve encouragement to proceed fur-
resent himself on appeal; (2) whether he received ther. Slack v. McDaniel, 529 U.S. 473, 484, 120
ineffective assistance of counsel on direct appeal as S.Ct. 1595, 146 L.Ed.2d 542 (2000). For those
a result of his counsel's failure to raise issues re- claims on which the district court has denied relief
garding the erroneous exclusion of several jurors on the merits, Willingham must demonstrate that
for cause, the improper introduction of hearsay reasonable jurists would find the district court's as-
testimony, and the improper questioning of at least sessment of the constitutional claims debatable or
two witnesses for the State; (3) whether the district wrong. Id.
court erred by holding that there was no error in the
exclusion of two jurors based on their beliefs about [T]he determination of whether a COA should
the death penalty; (4) whether the district court issue must be made by viewing [Willingham]'s ar-
erred by holding that there was no error in the trial guments through the lens of the deferential scheme
court's restriction of Willingham's questioning of a laid out in 28 U.S.C. 2254(d). Barrientes v.
prospective juror; (5) whether the district court Johnson, 221 F.3d 741, 772 (5th Cir.2000), cert.
erred by holding that hearsay statements made by dismissed, 531 U.S. 1134, 121 S.Ct. 902, 148
Willingham's wife were properly admissible as im- L.Ed.2d 948 (2001). When a claim has been adju-
peachment evidence; (6) whether the district court dicated on the merits in state court, a federal habeas
erred by holding that the opinion testimony of the court must defer to the state court's decision unless
State's expert witness was admissible; (7) whether it [is] contrary to, or involve[s] an unreasonable
the Texas death penalty scheme is unconstitutional application of, clearly established Federal law, as
because it fails to provide for meaningful appellate determined by the Supreme Court of the United
review; and (8) whether Willingham's rights to due States; or ... [is] based on an unreasonable determ-
process and equal protection were violated because ination of the facts in light of the evidence presen-
the jury was not instructed on the effect that Texas ted in the State court proceeding. 28 U.S.C.
parole law would have on his sentence. He did not, 2254(d)(1) and (2). A decision is contrary to ...
however, brief issues (3), (4), (5), and (6) in his clearly established Federal law, as determined by
brief in support of his COA application (although the Supreme Court of the United States if the
the subject matter of these issues is addressed in re- state court arrives at a conclusion opposite to that
lation to his ineffective assistance of counsel reached by [the Supreme Court] on a question of
claim). Accordingly, we address only the four COA law or if the state court decides a case differently
requests that Willingham briefed. See Hughes v. than [the Supreme Court] has on a set of materially
Johnson, 191 F.3d 607, 613 (5th Cir.1999) (issues indistinguishable facts. Williams v. Taylor, 529
not raised in brief in support of COA application U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389
are waived), cert. denied, 528 U.S. 1145, 120 S.Ct. (2000). A decision involve[s] an unreasonable ap-
1003, 145 L.Ed.2d 945 (2000) plication of[ ] clearly established Federal law, as
determined by the Supreme Court of the United
A States if the state court identifies the correct gov-
Standard of Review erning legal principle from [the Supreme Court's]

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 3
61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.)))

decisions but unreasonably applies that principle to Fourth Appellate District, 528 U.S. 152, 120 S.Ct.
the facts of the prisoner's case. Id. at 413. The 684, 145 L.Ed.2d 597 (2000), which was handed
state court's factual findings are accorded a pre- down subsequent to the state habeas court's ruling.
sumption of correctness that Willingham may rebut In Martinez, the Supreme Court held that there is
only by clear and convincing evidence. 28 U.S.C. no federal constitutional right to self-representation
2254(e)(1). on direct appeal from a criminal conviction. Id. at
FN2
163.
B
Denial of the Right to Self-Representation FN2. In Faretta v. California, 422 U.S.
We address first Willingham's request for a 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562
COA for his claim that his right to due process was (1975), the Supreme Court held that a
violated when he was denied the right to represent criminal defendant has a Sixth Amendment
himself on appeal. Willingham's appointed counsel right to represent himself at trial. Based on
filed his brief on direct appeal on January 11, 1993. Faretta, our court held in 1993 (seven
Five months later, prior to the filing of the State's years prior to Martinez), that a state crim-
brief, Willingham filed a motion to strike his ap- inal defendant has a constitutional right to
pointed counsel's brief and to proceed pro se on ap- present pro se briefs and motions on ap-
peal. In that motion, he asserted that the brief filed peal. See Myers v. Collins, 8 F.3d 249, 252
by his appellate counsel did not reflect the true (5th Cir.1993). In the light of Martinez,
merits of his case. He did not, however, specify the which held that the Sixth Amendment does
issues he wanted to raise. In support of his motion, not apply to appellate proceedings, and
Willingham submitted an affidavit in which he in- which cited Myers as one of the cases ex-
dicated his belief that he was able to prepare a brief pressing conflicting views on the issue,
and waived his right to the assistance of counsel. this aspect of Myers is no longer valid and
The Court of Criminal Appeals denied Willing- is thus inapplicable to our resolution of
ham's motion. Willingham argues that this violated Willingham's COA request.
his constitutional right to represent himself on ap-
peal. Willingham argues that Martinez does not fore-
close his claim, because Martinez is based on the
The state habeas trial court denied relief for assumption that states will consider pro se argu-
this claim on the ground that Willingham was at- ments, in addition to those raised by counsel. See
tempting to use his right of self-representation to Martinez, 528 U.S. at 164 (observing that the rules
obstruct the orderly procedure in the courts and the governing appeals in California, and presumably
fair administration of justice. See Webb v. State, those in other States as well, seem to protect the
533 S.W.2d 780, 784 (Tex.Crim.App.1976) ability of indigent litigants to make pro se filings).
(holding that a criminal defendant has the right to He maintains that, because Texas refuses to con-
represent himself on appeal, but that the right of sider pro se arguments in addition to those raised
self-representation is not a license to capriciously by counsel, he can still establish a due process viol-
upset the appellate timetable or to thwart the or- ation, notwithstanding Martinez.
derly and fair administration of justice; and declin-
ing to rule on appellant's pro se motions that were The State argues that this claim is foreclosed
filed long after his appointed counsel had filed an by Martinez. It contends further that this claim is
appellate brief). barred by the non-retroactivity doctrine of Teague
v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
*3 The district court denied this claim on the 334 (1989). See Vega v. Johnson, 149 F.3d 354,
merits, in the light of Martinez v. Court of Appeal, 361-62 (5th Cir.1998) (holding that Myers created a

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 4
61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.)))

new rule of constitutional law that was not applic- hearsay testimony; and (4) the trial court erred by
able on collateral review, and that a rule establish- admitting improper expert testimony.
ing the extent and requirements of the right of self-
representation on appeal would be a new rule Willingham's ineffective assistance claim is
barred by Teague ). Finally, the State argues that governed by the standard set forth in Strickland v.
this claim is procedurally barred because the state Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
habeas court found that Willingham waived his L.Ed.2d 674 (1984). To obtain a COA for this
right to self-representation when he accepted the claim, Willingham must make a substantial show-
assistance of counsel, allowed counsel to file an ap- ing that his appellate counsel performed deficiently
pellate brief, and then waited at least five months to and that the deficient performance prejudiced his
assert his wish to proceed pro se. defense. Prejudice is demonstrated if there is a
reasonable probability that, but for counsel's unpro-
In the light of Martinez, Willingham cannot fessional errors, the result of the proceeding would
demonstrate that reasonable jurists would find the have been different. Id. at 694. A reasonable
district court's assessment of this claim debatable probability is a probability sufficient to undermine
or wrong. See Slack, 120 S.Ct. at 1604. Notwith- confidence in the outcome. Id. Accordingly, to es-
standing its observations about the ability of indi- tablish prejudice, Willingham must show a reason-
gent litigants to make pro se filings under state ap- able probability that he would have prevailed on his
pellate rules, the Supreme Court's refusal to recog- appeal had counsel raised the omitted claims. Smith
nize a due process right to self-representation on v. Robbins, 528 U.S. 259, 285-87, 120 S.Ct. 746,
appeal is not conditioned on the appellant's ability 145 L.Ed.2d 756 (2000). The Constitution does not
to make such filings. The imposition of such a con- require an appellate attorney to advance every con-
dition on collateral review is not permitted under ceivable argument, regardless of merit. Evitts v.
Teague. Accordingly, Willingham's request for a Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83
COA for this claim is denied. L.Ed.2d 821 (1985). Instead, counsel is required to
raise and brief only those issues which are believed
C by counsel, in the exercise of professional judg-
Ineffective Assistance of Counsel on Direct Appeal ment, to have the best chance of success. See Jones
*4 Next, we consider Willingham's request for v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308,
a COA for his claim that he received ineffective as- 77 L.Ed.2d 987 (1983).
sistance of counsel on direct appeal. Willingham's
appointed counsel argued on direct appeal that: the We now turn to examine each of the issues that
evidence was insufficient to support the jury's an- Willingham contends his counsel should have
swers to the special issues at the punishment phase; raised on direct appeal.
the trial court erred by denying the defense motion
to change venue; the trial court erred in refusing to 1
admit impeachment testimony; and the trial court Exclusion of Jurors for Cause
erred by refusing to instruct the jury on parole law. Willingham seeks a COA for his claim that his
Willingham argues that his appellate counsel appellate counsel rendered ineffective assistance by
rendered ineffective assistance by failing to argue, failing to argue on appeal that the trial court erred
in addition, that: (1) the trial court erred by granting by granting two of the State's challenges for cause
the State's challenges for cause of prospective jur- during voir dire.
ors Allen and Ovalle; (2) the trial court erred by
When questioned by the prosecutor, prospect-
limiting voir dire examination of prospective juror
ive juror Ovalle testified that she could not vote for
Ovalle; (3) the trial court erred by admitting
the imposition of the death penalty and that this

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 5
61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.)))

was a firm belief that she had held for a long time. that she could not base her verdict on the evidence
She stated that, because of her belief, she could not if it involved the death penalty.
vote in favor of the death penalty, regardless of
what the evidence might be, and that she would *5 The Supreme Court has held that a prospect-
automatically vote against the death penalty. She ive juror may be excused for cause in a capital case
testified further that her feelings against the death when the juror's views on the death penalty are
penalty were so strong that they would interfere such that they would prevent or substantially im-
with her ability to vote to convict someone of capit- pair the performance of his duties as a juror in ac-
al murder, knowing that she would later face the cordance with his instructions and his oath. Wain-
decision regarding the death penalty. Finally, she wright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83
testified that her views on capital punishment L.Ed.2d 841 (1985) (internal quotation marks and
would substantially impair her duties as a juror and citation omitted). It is improper, however, to excuse
might keep her from following the court's instruc- a juror for cause when the juror would approach a
tions. When questioned by defense counsel, Ovalle death penalty case with greater care or caution or
stated that she would consider her oath as a juror to where the decision would involve him emotionally.
be binding and that, if she took an oath to follow Adams v. Texas, 448 U.S. 38, 49-50, 100 S.Ct.
the law, she would do so. She testified further that 2521, 65 L.Ed.2d 581 (1980). Because the trial
she thought she could answer the special issues judge has the opportunity to see and hear the pro-
based on the evidence, despite her views about the spective jurors, we give deference to the trial
death penalty. When questioned again by the State, judge's credibility determinations. Wainwright, 469
however, Ovalle reiterated that she could not vote U.S. at 425-26.
to impose the death penalty.
The state habeas trial court denied relief on
Prospective juror Allen also did not believe in Willingham's claim that the trial court erred by
capital punishment. She testified that her belief was granting the State's challenges for cause, observing
based on moral and religious reasons, that she had that the prospective jurors' responses to questioning
strong feelings about the subject, and that she had showed that their views on the death penalty would
never felt differently. She testified that, because of substantially impair the performance of their duties
her beliefs, she would answer the special punish- in accordance with the court's instructions and the
ment issues in such a manner that the death penalty jurors' oath. It denied Willingham's claim that he
could not be imposed, regardless of the evidence. received ineffective assistance of appellate counsel
She agreed that it would be impossible for her to for the same reason.
swear that she would render a verdict solely on the
In assessing the ineffective counsel claim, the
law and evidence in a case where the death penalty
district court held that Willingham was not preju-
was involved. She also indicated that her views
diced, because there was not a reasonable probabil-
about the death penalty would interfere with her
ity that the outcome of the appeal would have been
ability to render a fair verdict at the guilt-innocence
different if his appellate counsel had raised the is-
phase, knowing that she would face the decision of
sue. The district court's assessment of this claim is
the death penalty if the defendant were convicted.
neither debatable nor wrong, because the state
When questioned by defense counsel, Allen stated
court's decision is not contrary to federal law and is
that she thought she could answer the special pun-
not based on an unreasonable application of the law
ishment issues based on the evidence, and that she
or an unreasonable determination of the facts. Es-
would not intentionally disregard her oath because
sentially, any such claim would have been meritless
of her opposition to the death penalty. When ques-
as an appellate issue. Both of the prospective jurors
tioned again by the State, however, Allen stated
stated more than once that, because of their opposi-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 6
61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.)))

tion to the death penalty, they could not render a Willingham is not entitled to a COA for this
verdict based solely on the evidence at trial. Al- claim because the district court's assessment of this
though, when questioned by defense counsel, both claim is neither debatable nor wrong. Con-
of them said that they thought they could follow sequently, Willingham has not made a substantial
their oaths and answer the punishment issues based showing that he was prejudiced by his counsel's
on the evidence, they both reiterated, in response to failure to raise this issue on appeal; there simply is
further questioning by the prosecutor, that they not a reasonable probability that the outcome of the
could not vote in such a way as to impose the death appeal would have been different had the issue
penalty. Because both of the prospective jurors held been raised. As the state habeas court and the dis-
views about the death penalty that would have sub- trict court observed, the question that defense coun-
stantially impaired them in fulfilling their duties as sel wanted to ask is duplicative of similar questions
jurors, the trial court was well within his discretion that had already been asked by defense counsel.
in granting the State's challenges for cause. Accord-
ingly, Willingham cannot show that he was preju- 3
diced by counsel's alleged failing: There is not a Hearsay Testimony
reasonable probability that Willingham would have Next, Willingham seeks a COA based on the
prevailed on appeal had the issue been raised. failure of appellate counsel to argue that the trial
court erred by admitting hearsay evidence at the
2 punishment phase of his trial. The testimony at is-
Limitation of Voir Dire sue was introduced to impeach the testimony of
*6 Willingham also seeks a COA for his claim Willingham's wife, who was called by the State as a
that his appellate counsel rendered ineffective as- hostile witness during the punishment phase. Will-
sistance by failing to argue on appeal that the trial ingham's wife testified that Willingham had never
court erred by refusing to allow counsel to ask pro- hurt her or her children, and that her children were
spective juror Ovalle whether, irrespective of her not afraid of him. She also denied that she had ever
personal beliefs, she could follow the law and de- told Karen or Kim King that Willingham had
cide the punishment issues based upon the evid- beaten or kicked her while she was pregnant in an
ence. He contends that, had counsel been allowed attempt to cause a miscarriage. She further denied
to ask this question, he could have shown that that Willingham had ever made the statement, after
Ovalle could answer the questions truthfully based they had separated, that it would be a good trade if
on the evidence and thus defeat a challenge for she took their daughter and he took the videocas-
cause. sette recorder (VCR).

The state habeas trial court rejected this claim Karen King was called by the State to impeach
on the ground that Willingham was not prejudiced, Willingham's wife. She testified that she had seen
because a similar question had already been asked, Willingham's wife with a busted lip, two black
answered, and considered by the court. The district eyes, bruised legs, and a red spot on her stomach.
court held that, in the light of the fact that defense She also testified that Willingham's wife told her
counsel had asked Ovalle essentially the same ques- that Willingham had beaten her and kicked her in
tion earlier and the fact that many of Ovalle's previ- the stomach while she was pregnant because, she
ous answers to questions indicated that she could believed, he wanted to cause a miscarriage.
not render a verdict based on the law and the evid-
ence, the trial court did not abuse its discretion by The State also called Kim King as a witness.
refusing to permit Willingham's counsel to ask the She testified that Willingham's wife had spoken to
question. her about Willingham beating her while she was
pregnant. She testified further that Willingham's

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 7
61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.)))

wife told her that Willingham had stated that he testimony been excluded. The magistrate judge
wanted the VCR and that it would be a fair trade for reached this conclusion because of the horrific
their oldest daughter. nature of the crime and the other evidence at the
punishment phase-including Willingham's extens-
The trial court overruled defense counsel's ive criminal background, his bragging about killing
hearsay objections to Karen and Kim King's testi- a dog, the other testimony given by the Kings re-
mony. The state habeas trial court held that Will- garding Willingham's wife's appearance after being
ingham failed to present a ground for relief that was beaten by Willingham, and testimony of a neighbor
cognizable on habeas review. Furthermore, it held who witnessed Willingham slap his wife and who
that any error in admitting the testimony was harm- once helped Willingham's wife call the police about
less, because it was more probable than not that the Willingham's violence.
result would have been the same if the challenged
testimony had been excluded. It denied Willing- The district court held that, even if the State
ham's claim that he received ineffective assistance knew before it called her as a witness, that it would
of appellate counsel for the same reason. The Texas impeach Willingham's wife's denial that she had
Court of Criminal Appeals denied relief, but de- been abused by Willingham, the State also elicited
clined to adopt the trial court's findings of fact re- testimony from her that did not relate to the abuse.
lating to this claim. Accordingly, the district court concluded that the
State did not improperly call Willingham's wife
*7 On federal habeas, the magistrate judge solely to impeach her. The district court therefore
stated that Karen King's testimony regarding Will- concluded that the trial court did not err when it ad-
ingham's wife's statement about the reason she mitted the hearsay statements for impeachment pur-
thought Willingham had beaten her while she was poses, and that, as the matter related to his ineffect-
pregnant was hearsay, but that the testimony was ive counsel claim, there was not a reasonable prob-
admissible to impeach Willingham's wife's testi- ability that the outcome of Willingham's appeal
mony that she never made such a statement to would have been different if his counsel had raised
either of the Kings. The magistrate judge noted that the issue. The district court noted that Willingham
Willingham's counsel did not request a limiting in- did not object to the magistrate judge's conclusion
struction. that he was not prejudiced by appellate counsel's
failure to appeal the admission of testimony regard-
The magistrate judge stated that Karen King's
ing Willingham's statement that he would trade his
testimony regarding Willingham's statement to his
daughter for a VCR. The district court concluded
wife about trading the VCR for his daughter was in-
that Willingham was not prejudiced by the testi-
admissible hearsay, because Willingham's wife did
mony, even if it were hearsay, because the testi-
not deny that she had made such a statement to
mony was insignificant in the light of other testi-
King. Instead, she denied that Willingham had ever
mony regarding the nature of Willingham's rela-
made the statement to her. The magistrate judge
tionship with his wife and children.
concluded, however, that, as far as his ineffective
counsel claim was concerned, Willingham was not Willingham is not entitled to a COA for this is-
prejudiced by counsel's failure to raise the issue on sue, because the district court's assessment of this
appeal, because there was not a reasonable probab- claim is neither debatable nor wrong. Willingham
ility that the appellate court would have found re- has not made a substantial showing that he was pre-
versible error. Instead, the magistrate judge con- judiced by counsel's failure to raise this issue on
cluded that the appellate court would have found direct appeal.
the error harmless, because the jury would not have
reached a different decision on punishment had the 4

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 8
61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.)))

Expert Testimony an accelerant was proper expert testimony because

*8 The last basis for Willingham's ineffective that opinion was based on his specialized know-
assistance of appellate counsel claim involves ledge about fires and their causes. The magistrate
counsel's failure to appeal the admission of opinion judge also concluded that Vasquez's testimony that
testimony from the State's arson investigator, Willingham fabricated the story about escaping the
Vasquez. During the guilt phase of trial, Vasquez, a fire through the hallway was admissible opinion
deputy state fire marshal and arson investigator, testimony. Although it embraced an ultimate issue,
was called by the State as an expert witness. it was not testimony regarding the veracity of a wit-
Vasquez testified that, based on the burn patterns ness, because Willingham did not testify at trial. In-
and pour patterns and the stains on the concrete stead, Vasquez testified that he did not believe
front porch, the fire was set intentionally with the Willingham's story because, based upon his special-
use of an accelerant. He testified that he did not be- ized knowledge, he did not believe that Willingham
lieve Willingham's two-year-old daughter could could have escaped the burning house without in-
have started the fire, because the accelerant liquid haling smoke and sustaining injuries to his bare
was deliberately poured throughout the hallway and feet. Although the magistrate judge concluded that
the bedroom, and because the fire was started in Vasquez's opinion testimony regarding Willing-
three different places. He testified that Willingham ham's guilt was admitted erroneously with respect
had told him that his daughter had awakened him to the ineffective counsel claim, he concluded that
while he was sleeping, the bedroom was full of the Texas Court of Criminal Appeals would have
smoke, he kicked open the door with his bare foot, found the error to be harmless had the issue been
and he ran down the hallway and out the door. raised on appeal, considering the substantial cir-
Vasquez testified that, in his opinion, Willingham's cumstantial evidence of Willingham's guilt. That
story was not true, because Willingham could not evidence included uncontroverted expert testimony
have exited the house after it was on fire and smoke from two fire experts that an accelerant was used to
had reached his bedroom without sustaining injury start the fire intentionally. In addition, there was
to his feet or substantial smoke inhalation damage. testimony that Willingham refused to try to rescue
Finally, Vasquez testified that it was his opinion his children from the fire; that he exhibited a lack
that Willingham started the fire. of concern or grief in the hospital after the fire; that
he did not sustain any substantial injuries; that he
Willingham argues that Vasquez's opinion that displayed a carefree attitude the day after the fire;
Willingham's story was pure fabrication was im- that he told arson investigators on the day of the
proper expert testimony regarding the ultimate is- children's funeral that they might find something on
sue in the case. He also argues that Vasquez was the floor of the twins' bedroom because he had
improperly permitted to testify that Willingham in- poured cologne there prior to the fire; that on the
tentionally set the fire. day of the children's funeral he sought help from
the arson investigators to find his dartboard in the
The state habeas trial court held that any error
ruins of his house; and that a container containing
in admitting Vasquez's opinion testimony was
traces of kerosene was found on the porch and a
harmless. It denied Willingham's claim that he re-
similar petroleum distillate was found on the wood
ceived ineffective assistance of appellate counsel
threshold of the front door. Moreover, there was
for the same reason. The Texas Court of Criminal
testimony that, while in jail awaiting trial, Willing-
Appeals denied relief, but did not adopt the trial
ham confessed to an inmate that he started the fire
court's findings of fact relating to this claim.
in order to hide evidence of recent child abuse. Fi-
The magistrate judge concluded that Vasquez's nally, in addition to the one inadmissible opinion
testimony that the fire was intentionally set using given by Vasquez, he also gave admissible opinion

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 9
61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5 (Tex.)))

testimony that a child could not have set the fire Amendments. Willingham does not deny that this
and that Willingham's story did not match the phys- claim is foreclosed by our precedent, but states that
ical evidence and was contradicted by his lack of he is raising it to preserve the opportunity to
injuries. The magistrate judge concluded that be- present the issue to the Supreme Court. See Woods
cause the opinion testimony was either admissible v. Cockrell, 307 F.3d 353, 358-60 (5th Cir.2002);
or harmless, Willingham could not establish any Moore v. Johnson, 225 F.3d 495, 505 (5th
prejudice as the result of his appellate counsel's Cir.2000), cert. denied, 532 U.S. 949, 121 S.Ct.
failure to raise the issue. The district court agreed 1420, 149 L.Ed.2d 360 (2001).
with the magistrate judge that Willingham was not
prejudiced by his appellate counsel's failure to raise E
the issue on appeal, because any error would have Jury Instruction on Parole
been harmless in the light of the substantial evid- Finally, Willingham requests a COA for his
ence of Willingham's guilt. claim that his constitutional rights were violated by
the trial court's refusal to instruct the jury that he
Willingham is not entitled to a COA for this is- would be ineligible for parole for thirty-five years
sue because the district court's assessment of this if sentenced to life imprisonment. As Willingham
claim is neither debatable nor wrong. Even assum- acknowledges, he is not entitled to a COA for this
ing that some of Vasquez's testimony was admitted claim because it is foreclosed by Fifth Circuit pre-
erroneously, he cannot establish the second prong cedent. See Miller v. Johnson, 200 F.3d 274, 290
of his ineffective counsel claim: There is not a reas- (5th Cir.), cert. denied, 531 U.S. 849, 121 S.Ct.
onable probability that the Texas Court of Criminal 122, 148 L.Ed.2d 77 (2000). He raises the issue in
Appeals would have found the error to be prejudi- order to preserve the opportunity to present it to the
cial to the outcome of the case had the issue been Supreme Court.
raised on direct appeal.
III
5 For the foregoing reasons, Willingham's applic-
Summary ation for a COA is
*9 In sum, Willingham is not entitled to a COA
for his claim that his appellate counsel rendered in- DENIED.
effective assistance. Willingham has not made a
C.A.5 (Tex.),2003.
substantial showing that there is a reasonable prob-
Willingham v. Cockrell
ability that counsel's failure to raise the issues on
61 Fed.Appx. 918, 2003 WL 1107011 (C.A.5
direct appeal would have affected the outcome of
(Tex.))
his appeal.
END OF DOCUMENT
D
Constitutionality of Texas Death Penalty Statute
Willingham also seeks a COA for his claim
that the Texas death penalty scheme is unconstitu-
tional because the Texas Court of Criminal Appeals
will not review the sufficiency of the evidence sup-
porting the jury's answer to the special punishment
issue on mitigating evidence. Willingham argues
that this results in the jury being given unlimited
discretion in choosing whether to assess the death
penalty, in violation of the Eighth and Fourteenth

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

124 S.Ct. 466 Page 1
540 U.S. 986, 124 S.Ct. 466, 157 L.Ed.2d 379, 72 USLW 3307
(Cite as: 540 U.S. 986)

Supreme Court of the United States

Cameron Todd WILLINGHAM, petitioner,
v.
Doug DRETKE, Director, Texas Department of
Criminal Justice, Correctional Institutions Division.

No. 03-5609.
Nov. 3, 2003.

Case below, 61 Fed.Appx. 918.

Petition for writ of certiorari to the United

States Court of Appeals for the Fifth Circuit denied.

U.S.,2003
Willingham v. Dretke
540 U.S. 986, 124 S.Ct. 466, 157 L.Ed.2d 379, 72
USLW 3307

END OF DOCUMENT

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 .. ",-' ),-

TEXAS BOARD OF PARDONS AND PAROLES

MINUTES

NAME / EXECUTION NUMBER: WILLINGHAM, Cameron Todd

/999041

DATE . BOARD ACTION

J. II, '')ott "B. U' -r.. i\-

C\ L Cj 0 -
+. CJ"'.

) 1'1 Y'\o:4 T"" "".. e. .._-t. Y1

.,.".'..',',,,"',..,.
,,,",
.,,.
. ,,
,''..
"'"
:, ,:
, ,'".,.,.''::'."'. ..,",,'..,'.",:','",''."'..'",'..,,..,.."'"'..:....'...,:'"'',,.'..','."".
...'..,"'',
'""....'","'':'.'.,','.' .'.,
.....'",'.., :''',....
:','::"
."'":'
, ,, :'"',.."",'..:,',',.,.,".:..',.',...'.
"
:., ,.,"."..'',.:.: ''
"".,,.,",.,.,'.,.,
',. :'.'..
,' ..
',',,' .
"
' .'. ',
,,'"' .',,.,
,,'' .". .
' ',
, ',.'.',.,,'.'":,'.' ....,'.',"""",".,..","'",,',,,"'.,..'.'.:..,'",' '',.,'." .
''.
'
,,
" .
,
'
.
',.,.,'.",.'. .:.'':.',,...'',',,'."...'',.,,..."-..,,:'..,,:'......,:''."".',,:..,:"''.",,-'':'...',"'"''',.:".,"..','",,.,,''.,": '. ,.","""".,,'..,,."'' ""' : ,:"'. " :
"''..':,':: " '. ., ","'""', ,.", :." ,, ,'"
.''. .
, , '.''".'.,""
","
.."
"" "', "
'',, , ,,
?'', .'. ",:'",...'"...:."'. .'".,,...".",. :' "'
,,'"..
:: ,'.
, ' '.

, t,

NOTI.CE '
, TO
.i'

. OF
 JOB STATUS REPORT

TIME 02/13i2ae4
NAME : EXECUTIVE CLEMENCY
FAX# : 40657S
TEL# : 41355852

DATE, TIME
02/13 13: 19
FAX NO. /NAME
882548255572
DURATION . a6:01:15
PAGE(S)
RESULT STANDARD
MODE ECI'

."'i1

QN;
-6 -
/cY' ,
-:Q, .
a:::

'01

. . 1 "1""
;1 ?!i-'"
"I'
' ciF"

Texs Bord of Pardons a Paroles

8610 Shoal Crek Blvd"
P. O. Box 13401
Austn, Texas 78711

FACSIMILE TRNSM1SSION

02/13/2004

Walter Reaves Jr.

k: Attrney at Law
(254) 826-55712

GES (INLUDING CO PAGE): 03

Maria Ramire , Clemency Administra

 :'
~~~~
: ),
~~~~

t;'
:7:v

Texas Board of Pardons" Paroles

8610 Shoal Creek Blvd.
P. O. Box 13401
Austn, Texas 78711

. FACSIMILE TRNSMISSION

Dat: 02/13/2004

Sending to:

NAME: Walter Reaves, Jr.

Attorney at Law

FAX: (254) 826..5572

# Of PAGES (INCLUDING COVER PAGE): 03

From:

. NAME: Maria Ramirez, Clemency Administrator

DEPT: Exutive Clemency Section

FAX: (512) 406..5786

PHONE: (512) 406-5852

NOTES:
 POB 13401
Ausin, Texs 78711
512-40- 5852
Fax 512-406-5786

February 13, 2004

Walter Reaves, Jr.

Attrney .at Law
O. Box 55
Waco, Texs 76691
254-826-5572 (telefax)

re: Cameron Todd Willingham #999041

Petition for Executive Clemency

Dear Mr; Reaves:

The Members of the Texs Bord of Pardons and Paroles have complet their
leser
consderation of your petiion requestng the. commutation of death sentence to a
penalty and a 90-'day repriev.

Aftr a full and careful reiew of the petition and exhibits, a majority of the Board has
decided to not recqmmend commuttion of the death sentence to a lesser penalty and a
ay reprieve.

Enclosed please find a summary reflectng each ' Member s decision.

Sincerely, .

Maria Ramirez
Clemency Administrator

c: Rissie Owens, Preiding Ofcer (Chair)

Keith Hote, Board Administrator
Laura McElroy, General Counsel
file

enc: voting summarY

 WllLiNGHAM CAMERON TODD
#999041
BOARD VOTING:

ecommend Not Recommend Ng Recommend

Board Member Commuttiol'
Rerie end Commuton
Repriev of Sentnce of Sentece

0211212004
Lynn Bron
D2I1212O4

02/131004 0213/200
PaddY Burwell

0211312004 02113104
laFayet Collins

0213/20 021131004
Linda Garcia

0211312004 02113120
Roy Garia

0211"312004 02113/200
Juanita Gonalez

0211112004 0211112004
Daniel Guerr

021131204 0231004
. Rissie Owns

0213100 02113104
Fllbert Rena

02113100 02113104
Brendolyn
ROQ..ohnson
0213120D4 02113120
Lynn Ruzicka

D2/1012004 021012004
Alvin Shaw

02113/2004 02l1
Charies Shipman

021131004 0213/2004
Lucinda Simons

Charles Speier 02/ 0/2004 02110104

TOTAL VOTES
 ~~~ . ", ":,
.j' '''

C', !'''L.' 'J'

Boa of Pardons &. Pale

" J "
Exec Clem Sect
P. o. Bo 1:M1
. .t'. Austl Tex 7811
0:0
$;i 46..
Phone (5 2) 40-58:1
Fax (512)

EXECUTIVE CLEMENCY SECTION

MEMORANDUM

Da: 01/28/2004
. To: Review and Release prong, TOC -Parole Division
From: Maria mire

Pr
Clemency Administator

Re: Fee Afdavtt& Regi$tion Form for Repretation of Ofnder

Execbte Clemency
Willingham, Cameron Todd
TDCJ ID # 999041
SID # 04522128

Inmate.
The above individual ha$ reined Attrney Walter M. Reves Jr., Who
renced
his submitt a Fee Afdavit Form and the Registation Form for Reprentatio

Thes lomas are forwrded fo your files.

Thank you.
At: fe affdavit and reisttion fom
 01/26/2004 13: 41
. ;;
4065786
.. EXEaJTIVE CLEMENCY
k:J./"'''

11 APFIA VIT FORM

. v: Soplta
CLIENT:
AITkN YINO:RnON
/.
)U/Ms. FI
iEXAB'
MIL
CAo"

NO.
-TID

u A-.
NAM 1\ODJJLE
t.'-"1
I\Nj PIAJJCJ#;

ADPRESS
D4-4

' P. O.
te A'-
LAT NAM
()1.S"Z1-J 2.1/

VI'
S1J

CI. STATE m O. fJ CD
NAM OF USISS LA(. Z1Y
M"N. BUSINESS ADDRESS

BUSINSS fKN:# V- 6.2'- 37J3

'6.t,C;j
BCJ-BPt- CJ (FORMR Olt CUINI) :tMPLOnE(S) OR WI wmCH ATr:R
. ASSO()" OR HA A kETIONSJm AS AN EMPLOYERMEERS
FmsT N MIDLE:
. RELATIO:N SWP TO
OR EMPOYEE OR M.TAlS A CONTRCTUAL
PROVIE SERVICES (LIST ADtJlTONAL NA:S ON BACK.
l.AST N4M:
RELATIO:N :H: XNT:
HAVE y REGISTERED W1 n: TDCJ..l-AROJ, MVION WIr TH LAT 121\tONTIS1 YE
. Go,,' T. CODE 50ft.OS4 i3d 508.0$5 n:qn;:r ceru infonna'doo reat1le to foos, or lad tberof. Ths afda: it must bl:
D1pleted 1 ft ard!l to the Rlev areastigDed. swum .!d lub$l:ribed to belore a Nota Jic prir w anyn:pn'5ean.
L NO FEE
KPO.RTION OR FmMWl WBCH lAM A1'!J)t

'a
DAVE nCEtVD NO NOR PROMISE
SERVICES OF AN NAT't llNDERED, OR. TO BE RENDERE, IN CONNCTION W11 PAROLE
F.NCY FOR 'f ABO'Y NA PERSON.
SigD n: Prited Name WA- J 'I .L.

TE GO RNNi
n.
305.002 DEnNES I' COMPENSATION
CO:MENSATED PRESENTATION GMO l', SEVICE FAcn?
OR OTHR C OF 'VALUE OR
CODE AS
FINANCIA BENEFI THT IS BECEIVD DR IS TO BE aECE:rD :I RETt
FOR OR IN ONl'ECTION' WIT SERVICES UNDERED OR TO BE ImNDERED.
TEx. GoV' T.
. 508.
onE: ttWDeyJ UceDsed an tbe Sta of TeJ t may reite
083 maudate 1bat ony an
copensation for
rcpresentig. offender subJel:t to the jUri;dictiolll)f tbe 'rexs l)partme of Crlal JWltice
AMOUNT 0 DESCR;TION' OR VALUE OF COMPENSATION RECEIVD OJt EXlEC'rD: 5
Tal PERSO MAG TH COMPENSATION:
FIRT N MIDLE LAT NAM
AJ))RESS

BEREB)! S
CITY
Jt A1
STATE
AN
1JT TH ABOVE INORM TrON IS TRUE AN CO:RCT, AN))
PHONE#:

FURTffRM RE HEREY AGREE TO mOODIA TELY S1Jl'LEMET. THS AnA VlT IF ANy OF
STATEMENI MAE HEREIN .u. AFCTED BY A C.aGE IN FEE AGREEMET, OR GEM:NT. OR
FACTAL C N)ITIO.Ns. .
PRITE)J OR TYED NAM SIGNAJ'u:
DAY OF
TH
SUBSCNlE)) BEFORE ME UNDERSIGNED A UTHORITI; UNER PENAL TY OF :PERJY,
, A.D. ZO
(SEAL)

RR.12 Ql!v. BlOC SIGNA TIJ OF HE.G

OFFJc::R OR
NOTARY PUBLIC IN A. n FOR TI STATE OF 'rXAS
 '" , ." ~~~
U,.' .-
4063786 EXECUTIVE. CLEMENCY
01/25/2ae4 13: 41

REGISTRATI N FORM FO REPRESENTAT ON OF OFFEND R

To be filed with the T 21S Deparm,entofCriminal Justce.. Parole Division

K GOV'T. CODE g 508, 083 requires aperson who FOR OFFIC USE QNLY
resents an Dffender for compensation before the
B( a. of Pardons ild pardes, a Parole" PaneI or the Date reteived:
Divisi' on ofthe Texas Deparent of Criminal Jusice:

1)
2) To be an ttttomey Hcensedto p
To register vrth tbe Te;as Deparment of Criminal
ce in ths state, and D4t processed:
Justice. Parle Division.

Intial Filing Supplementa Filig

rx Renewal Filg
I h by declare my intentjon to represent one or more offend rs before. the Texas Boad of Pat dons and
Par les Parole Pa.el or the Parole'DivisiQn of the Depare af Crimina.l J.ustice for compensation.

(V20
WA1L A1. ' 12A; 1 JIt
.IT

Stf et Address: ()l 01. It: lSite #:

Po. tlc#
Cit) State, Zip: &u-e 7t:'Cf

ot:
j Jz-C, ! G4

OTH R REQUIRED FILINGS

AT pe I: replltig an ofener for c:omp sation sh also:
1) FH Afdavit with 1be: Parle t:ivision of the 'Texas Depent of CrliI1ustice.

5200.
t.an 01ncder Aesel1tion Fee
'" r 5ea. afdavlt must be compiered for each c.cnet
rsn firS( ccmtacts a meber or
rereseted an must b on file wi:! 1M depaent Wore the
emloyee of the Boar tJ a% employee of th ParDle Division on beal of th affcmder.
ilgs are at X8 Dep ent ofCril Justice-Parole Division 86 to ShOAJ Crk
Blvd.. Aus Tx. 7'&''37.
Qf fuer Wfnution. ca:. (S12) 406-

2) F'il yeh' Cri

. lat1
Offender rel! tioo S

reor.
ar Reort with.the Tex
Janua. 3 1 of the yea ;fllowing the yea clJer=d1;y the
3) Fill: a Supplemt'uta Regstuon Form with th Te
e.t of JumtOe-Parole Djvi on. no

s Deparent of Cri Jl.tice-Pale Divsion, no la er

10 clas . afer auy regisut info.rn ges. .c

Texas Den rEm:nt Qf Crilnat Justice - Parole Divi O. 'B 13401 tin, n.. 78111
R,-lUlI I:V. ilOO lS12) 406.
 Page 1
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

No. P-01-CA-20.
Only the Westlaw citation is currently available. Aug. 9, 2004.

United States District Court, AMENDED ORDER GRANTING PETITION FOR

W.D. Texas, Pecos Division. WRIT OF HABEAS CORPUS
Ernest Ray WILLIS, Petitioner, FURGESON, J.
v.
Janie COCKRELL, Director, Texas Department of
Criminal Justice, Institutional Division, Respondent.

TABLE OF CONTENTS
INTRODUCTION
FACTUAL AND PROCEDURAL BACKGROUND
STANDARD OF REVIEW
LEGAL ANALYSIS
I. The State Trial Court's Post-Conviction Factual Findings are Properly Before the Court
II. The State Trial Court's Post-Conviction Findings of Fact
A. The State Unnecessarily Medicated Willis While Incarcerated and During Trial
B. Findings of Ineffective Assistance of Counsel at the Guilt-Innocence and Sentencing Phases
1. Failure to Investigate Willis's Demeanor and Discover the Administration of Antipsychotic Drugs
2. Failure to Object to the State's Use of Willis's Demeanor and the State's Descriptions of Willis as an Animal
3. Failure to Cross-Examine Aggravating Evidence and to Present Mitigating Evidence
C. Prosecution's Failure to Disclose Pretrial Psychological Report
D. Facts Related to Willis's Innocence Claim
III. Innocence Claim
A. The State's Theory of the Fire
B. Confession of David Martin Long
C. Willis's Evidence Contradicting the State's Theory of the Fire
D. Analysis of Willis's Innocence Claim
IV. Administration of Medically Inappropriate Antipsychotic Medications
A. Administration of Medically Inappropriate Drugs
B. Whether a Showing of Involuntariness Requires an Objection
V. Prosecutorial Suppression of Evidence
VI. Ineffective Assistance of Counsel
A. The Texas CCA's Analysis
B. Ineffective Assistance of Counsel At the Guilt-Innocence Phase
1. Failure to Investigate Demeanor & Failure to Discover Unnecessary Medication

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 2
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

2. Failure to Object to Prosecution's Use of Willis's Demeanor at Guilt-Innocence Phase

3. Prejudice at the Guilt-Innocence Phase
C. Ineffective Assistance at the Sentencing Phase
1. Failure to Investigate and Discover the Wright Report
2. Failure to Object to the State's Descriptions of Willis as an Animal
3. Failure to Cross Examine and Present Mitigating Evidence
4. Prejudice at the Sentencing Phase
CONCLUSION
destroyed a home in Iraan, Texas. At the time, the house
INTRODUCTION was occupied by four people: Elizabeth Belue, Gail Al-
*1 Ernest Willis brings this petition under 28 lison, Ernest Willis and Billy Willis. All were guests of
U.S.C. 2254 for a writ of habeas corpus challenging the resident tenants of the house, Michael and Cheryl
his conviction and sentence of death in Texas state court Robinson. The Robinsons were not home at the time.
FN1
for the murder of Elizabeth Grace Belue. The Two of the guests, Elizabeth Belue and Gail Allison,
FN2
parties filed cross motions for summary judgment. died in the fire due to smoke inhalation. Their remains
After an extensive review of the state court determina- were found in two of the bedrooms of the three bed-
tion, the parties' briefing and the applicable law, the room house. The other two guests who survived the fire
Court finds that Willis's petition for writ of habeas cor- were Petitioner, Ernest Willis, and his cousin, Billy
pus should be granted because both his conviction and Willis. The Willis cousins did not know Belue or Allis-
sentence were obtained in violation of the United States on prior to the day of the fire. Billy Willis escaped the
Constitution. Specifically, the Court grants Willis's peti- fire when he jumped, naked, out of a bedroom window.
tion on the following grounds: 1) Willis's due process
rights were violated by the State's administration of According to Ernest Willis, on the night of the fire
medically inappropriate antipsychotic drugs without he was sleeping on the sofa in the living room. Willis
Willis's consent; 2) the State suppressed evidence favor- further claims that the smell of fire awakened him and
able and material to the sentencing determination; 3) that he ran through the house trying to awaken the occu-
Willis received ineffective assistance of counsel at the pants but could not enter the bedrooms due to the fire
guilt-innocence phase; and 4) Willis received ineffect- and smoke. Willis claims that when his attempts to
ive assistance of counsel at the sentencing phase. On all reach the others failed, he ran out the front door and
other grounds, Willis's petition is denied. around the outside breaking windows in an attempt to
secure an escape route for those still inside. The State of
FN1. Petition, (Docket No. 13), filed Dec. 12, Texas disputes Willis's version of the events.
2001 [hereinafter Pet .].
Willis was ultimately arrested and charged with the
FN2. Respondent's answer and motion for sum- murder of Elizabeth Belue. The indictment charged Pe-
mary judgment (Docket No. 19) and Petition- titioner with intentionally and knowingly causing the
er's Reply (Docket No. 22). Petitioner's Reply death of Elizabeth Belue in the course of committing ar-
indicates that Petitioner believes that the record son on a habitation. According to the State, Willis inten-
before the Court is satisfactory and thus this tionally poured a flammable liquid accelerant on the
petition is ripe for decision. See Pet.'s Reply, at FN3
floor of the house and set it afire. But even if one
2. relies exclusively upon the testimony of witnesses
presented by the prosecution at trial, numerous discrep-
FACTUAL AND PROCEDURAL BACKGROUND
ancies remain regarding the events leading up to the
In the early morning hours of June 11, 1986, a fire
fatal fire. The State did not present at trial a theory of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 3
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

Willis's alleged motive. ded in actual innocence, Willis relies upon evidence he
introduced at the state post-conviction hearing support-
FN3. Both of the individuals who survived the ing his account of the pertinent events. But, as will be
fire, Billy and Ernest Willis, were initially sus- detailed in Section IV addressing the innocence claim,
pects. Judge Jones rejected the innocence claim based upon in-
sufficiency of the evidence Willis offered in support.
*2 After a jury trial before the Honorable Brock
Jones of the District Court of Pecos County, Texas, STANDARD OF REVIEW
112th Judicial District, Willis was convicted on August The federal habeas statute, as amended by the Anti-
4, 1987 of capital murder and sentenced to death for terrorism and Effective Death Penalty Act of 1996
Belue's murder. Willis's sentencing phase was held on (AEDPA), 28 U.S.C. 2254, provides that:
August 5, 1987. Willis's conviction was affirmed on dir-
FN4
ect appeal on June 7, 1989, and on October 9, 1990, An application for a writ of habeas corpus on behalf
FN5
the United States Supreme Court denied certiorari. of a person in custody pursuant to the judgment of a
Willis then filed for state post-conviction relief on Oc- State court shall not be granted with respect to any
tober 8, 1991. On June 7, 2000, following five days of claim that was adjudicated on the merits in State court
hearing, Judge Jones of the Texas trial court issued de- proceedings unless the adjudication of the claim -
tailed findings of fact and conclusions of law and re-
FN6 (1) resulted in a decision that was contrary to, or in-
commended granting relief to Willis. On December
13, 2000, the Texas Court of Criminal Appeals volved an unreasonable application of, clearly estab-
(CCA) denied Willis all relief. lished Federal law, as determined by the Supreme
Court of the United States; or
FN4. Willis v. State, 785 S.W.2d 378, 387
(Tex.Crim.App.1989), reh'g denied, (Jan. 17, (2) resulted in a decision that was based on an unreas-
1990), cert. denied, 498 U.S. 908 (1990). onable determination of the facts in light of the evid-
FN7
ence presented in the State court proceeding.
FN5. Willis v. Texas, 498 U.S. 908 (1990).

FN6. Judge Jones was the judge for both Wil- FN7. 28 U.S.C. 2254(d).
lis's trial and his state post-conviction hearing.
A state court's decision is deemed contrary to
Willis then filed the instant petition alleging the clearly established federal law if the state court arrives
following claims for relief: 1) Willis is innocent and at a conclusion opposite to that reached by the Supreme
thus the Eighth and Fourteenth Amendments require Court on a question of law or if the state court decides a
that his conviction and sentence be vacated; 2) the case differently than the Supreme Court on a set of ma-
FN8
State's wrongful administration of antipsychotic medic- terially indistinguishable facts. Under the
ations to Willis violated his right to due process and unreasonable application clause, a federal habeas
other constitutional rights, including the right to counsel court may grant the writ if the state court identifies the
and the right to confront witnesses; 3) defense counsel correct governing principle from the Supreme Court's
rendered ineffective assistance at the guilt-innocence decisions but unreasonably applies that principles to the
FN9
phase; 4) defense counsel rendered ineffective assist- facts of the prisoner's case.
ance at the sentencing phase; 5) the prosecution sup-
FN8. Williams v. Taylor, 529 U.S. 362 (2000).
pressed evidence material to the sentencing determina-
tion; and 6) the cumulative effect of error outlined in FN9. Id.
the above claims violated due process.
*3 Pursuant to section 2254(e)(1), state court find-
In support of his argument for habeas relief groun-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 4
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

ings of fact are presumed to be correct, and the petition- some circumstances the state trial court's findings do
FN14
er bears the burden of rebutting the presumption of cor- not survive the CCA's denial of relief. In
FN10
rectness by clear and convincing evidence. When Micheaux v. Collins, the Fifth Circuit held that the state
the state habeas judge also served as the trial judge, as trial court's findings did not survive the CCA's denial of
Judge Jones did in this case, the state judge's factual relief where 1) the CCA denied relief without written
FN11
findings are entitled to particular deference. order and 2) the factual findings were directly inconsist-
FN15
ent with the CCA' peremptory denial of relief.
FN10. 28 U.S.C. 2254(e). See also Pondexter
v. Dretke, 346 F.3d 142, 146 (5th Cir.2003); FN12. Craker v. Procunier, 756 F.2d 1212,
Valdez v. Cockrell, 274 F.3d 941, 947 (5th 1213-14 (5th Cir.1985). See also Westley v.
Cir.2001). Johnson, 83 F.3d 714, 721 n. 2 (5th Cir.1996).

FN11. See Davis v. Blackburn, 789 F.2d 350, FN13. Westley, 83 F.3d at 721 n. 2.
352 (5th Cir.1986); Vuong v. Scott, 62 F.3d
673, 684 (5th Cir.1995), cert. denied, 516 U.S. FN14. Micheaux v. Collins, 944 F.2d 231, 232
1005 (1995). (5th Cir.1991) (en banc).

LEGAL ANALYSIS FN15. Id. See also Singleton v. Johnson, 178

Before addressing each of Willis's claims, the de- F.3d 381, 384, 85 (5th Cir.1999). In Walbey v.
termination must first be made whether the Texas trial Dretke, 2004 WL 909736 (5th Cir.2004) (per
court's post-conviction factual findings are properly be- curiam) (unpublished), the Fifth Circuit applied
fore this Court in light of the CCA's denial of relief. Micheaux instead of Craker even though the
CCA had issued a written order. However, the
I. The State Trial Court's Post-Conviction Factual Find- written order in Walbey was silent as to the
ings are Properly Before the Court state trial court's findings of fact and did not
At the outset, the Court notes that the posture of state whether the CCA accepted or rejected the
this dispute, cross-motions for summary judgment, in- factual findings of the trial court. In addition,
dicates the parties' agreement that the state trial court's the Walbey court stated that the facts found by
post-conviction findings of fact are properly before this the state trial court were directly inconsistent
Court on habeas review. Neither party requested an with the CCA's denial of habeas relief. In Wal-
evidentiary hearing. Moreover, the Court, on independ- bey, the CCA's opinion contained no specific
ent review, finds the state trial court's factual findings factual findings or reasoning to support its ulti-
are properly considered here, even in light of the Texas mate conclusion, and thus the terse opinion of
CCA's denial of relief. the ... CCA here is the functional equivalent of
a denial without written order. Id. at *3. The
According to Craker v. Procunier, the Fifth Circuit Fifth Circuit remanded the case to the district
requires that deference is owed to the state court's post- court for an evidentiary hearing. Although un-
conviction factual findings when denial by the Texas published because it provided no change or ex-
Court of Criminal Appeals was not inconsistent with planation of a generally established rule of law,
FN12
those factual findings. This must be the case be- Walbey is mentioned here because it demon-
cause, for example, the appellate court might hold that strates a helpful application of the distinction
the facts determined by the trial court did not warrant between Micheaux and Craker.
relief based on the appropriate legal standards, and such
a holding would not be inconsistent with those factual The CCA's order in the instant case more closely
FN13
findings. Despite the deference typically afforded resembles Craker on the Craker/Micheaux con-
FN16
the state court's post-conviction factual findings, in tinuum. This Court discusses the CCA's analysis

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 5
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

of each of Petitioner's claims in the relevant section in The State continued to daily administer these doses
this opinion. Generally though, for two of the claims be- of Haldol and Perphenazine to Willis throughout the
fore the Court-prosecutorial suppression of evidence course of his trial, including the jury selection, guilt-
and wrongful administration of antipsychotic drugs-the innocence and penalty phases. These proceedings began
CCA identified a legal principle and found that the facts on July 8, 1987 and concluded on August 5, 1987. Wil-
as found by the trial court did not meet the legal stand- lis was formally sentenced on August 5, 1987. The State
ard. For the other two claims-ineffective assistance of continued to administer Haldol and Perphenzine to Wil-
counsel at the guilt-innocence phase and at the senten- lis until August 27, 1987. The following day, Willis was
cing phase-the CCA discussed facts from the record dif- transported from Pecos County to the Texas Department
ferent than, but not inconsistent with, the facts relied of Corrections (TDC) in Huntsville. Willis has not
upon by the trial court. Then, based on a determination been administered antipsychotic medication at any time
of those different facts as legally significant, and on the since August 27, 1987-either during subsequent stays in
basis of legal standards the CCA employed, the CCA the Pecos County Jail (pursuant to bench warrants) or
FN17
denied relief. Because the CCA's opinion in this case in- while in the custody of TDC.
cluded legal reasoning and discussion of the facts, it is
not the functional equivalent of denial without written FN17. This factual finding implies a lack of
order. And for all four of the above claims, the CCA's medication beyond the date of the trial court's
opinion was based on the use of, in whole or in part, an post-conviction factual findings. While the re-
erroneous legal standard irrespective of the relevant cord suggests that the finding remains true long
facts used in relation to that legal standard. Therefore, after the trial court's hearing and until today,
this Court must defer to the post-conviction factual this Court makes no such finding and instead
findings of the state trial court. defers to the trial court's finding and that relev-
ant period of time.
FN16. Walbey, 2004 WL 909736 at *2.
There are multiple reasons the medications admin-
II. The State Trial Court's Post-Conviction Findings of istered to Willis were inappropriate according to Judge
Fact Jones. First, the dosages for Haldol (40 mg. per day)
*4 Here, the Court provides a summary of the state and Perphenazine (8 mg.-32 mg. per day) that the State
trial court's post-conviction factual findings. The relev- gave to Willis during the course of the trial were high
ant facts will be reiterated or developed for the analysis doses, even for acutely psychotic patients. The maxim-
of each of Petitioner's claims in the appropriate section, um dose of Haldol for a severely psychotic person is 15
as well. mg. per day. Willis received more than twice that
amount at 40 mg. per day. Second, Willis was admin-
A. The State Unnecessarily Medicated Willis While In- istered two antipsychotic medications. Judge Jones
carcerated and During Trial found that the combination of two different antipsychot-
Willis was arrested and incarcerated at Pecos ic drugs has more than an additive effect on a patient
County Jail on October 22, 1986. Willis was not taking and that the administration of antipsychotic drugs to a
any antipsychotic medications at the time of his arrest non-psychotic individual increases the side-effects of
and initial incarceration in the Pecos County Jail. The the drugs.
State began administering Haldol (the brand name for
the generic drug Haloperidol) to Willis on February 23, Judge Jones also found that common side effects of
1987. As of March 23, 1987, the State began adminis- antipsychotic medication include: flat or little facial ex-
tering 40 milligrams (mg.) of Haldol per day to Wil- pression, inexpressiveness, rigidity of the facial
lis; and on May 30, 1987, the State began administering muscles, fixed gaze, drowsiness, confusion and dimin-
between 8 mg. and 32 mg. of Perphenazine per day to ished ability to communicate with others. Judge Jones
Willis. stated that all of these side effects were exhibited by

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 6
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN22
Willis during his trial, and Willis's demeanor at the not consent.
evidentiary hearing on his habeas petition was markedly
FN18 FN20. Id. at 11.
different from his demeanor at trial. Judge Jones
found that Willis's expression, from the moment he
FN21. Id.
stepped into the courtroom for voir dire throughout the
entire trial, reflected an apparent indifference to the pro- FN22. As will be discussed later, although not
ceedings. Judge Jones found that Willis's demeanor at so determined by Judge Jones, the evidence
trial was a direct result of the antipsychotic medications suggests that Willis was actually medicated
he was receiving, and was absolutely typical of without his knowledge for symptoms he did not
FN19
known side effects of antipsychotic medications. manifest.
Finally, Judge Jones found that the prosecution seized
upon Willis's demeanor in the guilt-innocence and pun- B. Findings of Ineffective Assistance of Counsel at the
ishment phases of the trial, asking the jury to draw in- Guilt-Innocence and Sentencing Phases
ferences of guilt and future dangerousness from Willis's Judge Jones found ineffective assistance of counsel
lack of apparent feeling or emotion. at multiple stages in Willis's representation.

FN18. Judge Jones also found that, while an in- 1. Failure to Investigate Willis's Demeanor and Discov-
dividual's I.Q. is typically stable throughout er the Administration of Antipsychotic Drugs
one's life, Willis's intelligence test at the time Judge Jones found that defense counsel took no
of trial was significantly lower than at the time steps to determine the cause of Willis's appearance or
of the evidentiary hearing on the habeas peti- demeanor during the course of trial. As a result, defense
tion. Ex parte Willis, No. 27, 787-01 Find. of counsel never learned that the State was administering
Fact and Conc. of Law at 10. high doses of antipsychotic medication to Willis during
his incarceration at Pecos County Jail both before and
FN19. Id. during trial. Defense counsel did not speak with any
person with medical training concerning Willis's phys-
*5 Judge Jones also made findings regarding the
ical and emotional appearance. Defense counsel did not
medical justifications for the antipsychotic medications.
attempt to review Willis's Pecos County Jail medical re-
Judge Jones found that the State's administration of the
cords.
drugs to Willis was without any medical need. Anti-
psychotic medications like Haldol and Perphenazine are Judge Jones found that Willis's defense counsel not
not justified unless a patient is suffering psychotic only had the right to access those records, but that it
symptoms as a result of a lifelong psychotic disorder was rudimentary and basic for counsel to gather
FN20
. Psychosis is a very, very serious psychiatric such records. In addition, defense counsel recognized a
condition ... manifest by symptoms such as schizo- problem with Willis's demeanor and suspected that the
phrenia, derangement, hallucinations, delusions, para- problem could be related to medication that Willis was
FN21
noia, and formal thought disorder. Judge Jones taking but, nevertheless, failed to investigate Willis's
found that nothing in any of Willis's records, or his so- demeanor and failed to gather medical records. Had de-
cial or medical history, indicates that he needed to take fense counsel gathered Willis's Pecos County Jail re-
antipsychotic medications. Furthermore, the record does cords, counsel would have known Willis was unneces-
not show that the State established the requisite sarily receiving large doses of Perphenazine and Haldol
overriding justification and medical appropriateness FN23
prior to and during his trial.
findings before administering the mind-dulling or psy-
chotropic drugs to Willis during his trial. Finally, the FN23. Ex Parte Willis, No. 27, 787-01 Find. of
state court found that although Willis did not affirmat- Fact and Conc. of Law at 17.
ively object to the medication, his failure to object was

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 7
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

2. Failure to Object to the State's Use of Willis's De- sel asked these witnesses a total of two questions. De-
meanor and the State's Descriptions of Willis as an An- fense counsel knew in advance who the State's wit-
imal nesses would be and what the subject matter of their
Judge Jones found that the State referred to Willis's testimony would be. Counsel did not investigate the
demeanor during trial as evidence of guilt and danger- veracity of the witnesses or otherwise develop evidence
ousness and the State urged jurors to infer a lack of re- or arguments to respond to the government's penalty
morse based on Willis's demeanor. Defense counsel did phase case.
not object to any of these references by the prosecution.
FN24 Judge Jones also found that Willis's case was his
The state trial court found that the prosecution
characterized Willis as a pit bull, an animal, and a counsel's first capital trial. The defense did not prepare
rat, during voir dire, closing arguments and at the for the penalty phase, did not meet with Willis in ad-
FN25 vance of the penalty phase, introduced no evidence, and
penalty phase.
presented no witnesses whatsoever on Willis's behalf.
FN24. Id. The Court of Criminal Appeals, in its Despite being unprepared, defense counsel did not re-
decision affirming Willis's conviction on direct quest a continuance or a recess to prepare for the pen-
appeal, held that failure to object to an imper- alty phase. In fact, defense counsel met with Willis less
missible jury argument generally waives any than three hours prior to July 1987, when jury selection
error. See Willis, 785 S.W.2d at 385. commenced. Defense counsel spoke to four or five
people who knew Willis but failed to follow-up on the
FN25. Ex Parte Willis, No. 27, 787-01 Find. of limited information those individuals had pertaining to
Fact and Cone. of Law at 18. Willis.
*6 Based upon these findings, Judge Jones con- Judge Jones found that defense counsel could have
cluded as a matter of law that defense counsel's failure presented the following mitigating evidence but did not
to object to the State's use of Willis's demeanor contrib- do so: testimony of at least five Pecos County Law En-
uted to defense counsel's failure to meet the standard of forcement Officers that Willis was a respectful and
reasonableness required for effective assistance of well-behaved prisoner who was not the type to act viol-
counsel. The Court considers the legal conclusions re- ently or misbehave; testimony of other individuals that
lated to the factual findings in the relevant section be- Willis was non-violent; testimony that Willis turned
low. himself in when he learned of the outstanding indict-
ment against him; testimony of heroic acts by Willis
3. Failure to Cross-Examine Aggravating Evidence and
FN26 who, for example, saved the life of a drowning boy and
to Present Mitigating Evidence
assisted his infant niece who had been severely burned
FN26. Id. at 19-22. in a car fire; testimony of family and friends describing
Willis as a caring family man and responsible individu-
FN27
Judge Jones made the following findings of fact al. The state trial court found that the above mitig-
with respect to defense counsel's failure to cross-ex- ating evidence was readily accessible and available to
amine purported aggravating evidence and failure to defense counsel at little or no cost. Every character wit-
present mitigating evidence on Willis's behalf. The pen- ness who testified at the post-conviction hearing stated
alty phase of Willis's trial lasted less than half a day. that he or she would have been willing to testify on Wil-
The transcript from the penalty phase consumes barely lis's behalf at his trial.
ten pages. The prosecution called two witnesses, both
local law enforcement officers, who testified that Willis FN27. Defense counsel contacted none of these
had a bad reputation in the unspecified communities in witnesses. Some of the witnesses were present
which he resided. On cross-examination, defense coun- in the courtroom for portions of Willis's trial.
Ex Parte Willis, No. 27, 787-01 Find. of Fact

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 8
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

and Conc. of Law at 21. ination of Willis. On July 12, 1987, Dr. Wright ex-
amined Willis, who was then in the custody of the
C. Prosecution's Failure to Disclose Pretrial Psycholo- Pecos County Jail, to determine: 1) Willis's competency
gical Report to stand trial; 2) Willis's sanity and the presence or ab-
*7 At the post-conviction hearing in state court, sence of mental illness; and 3) the likelihood that Willis
Judge Jones heard evidence concerning a pretrial psy- would present a future danger. Shortly after the examin-
chological report finding that Willis was not a future ation, Dr. Wright orally reported his findings directly to
danger. The report was submitted to the prosecution and J.W. Johnson in the District Attorney's office. Dr.
never turned over to the defense before or during trial. Wright informed Johnson that, based on the evaluation
The findings of fact are summarized below. Based upon of Willis, he didn't think this was a good death penalty
these findings of fact, Judge Jones held that the evid- case, as he found no evidence to support a conclusion
ence suppressed by the prosecution was both favorable of future dangerousness for the purposes of the Texas
and material and that Willis was entitled to habeas relief FN30
FN28 capital sentencing statute. Furthermore, Dr.
for due process violations. Wright determined that Willis was competent to stand
trial and did not exhibit any form of mental illness or
FN28. See Brady v. Maryland, 373 U.S. 83, 87
mental retardation. At the time of Willis's trial, Dr.
(1963) (prosecutorial suppression of evidence
Wright did not discuss the psychological examination of
that is favorable to an accused violates due
Willis with anyone other than Johnson.
process where the evidence is material either to
guilt or punishment, irrespective of the good FN29. At the time Dr. Wright conducted the
faith or bad faith of the prosecution). examination of Willis, there was a pending mo-
tion for a psychiatric evaluation. After the eval-
On December 2 and 3, 1997, before the post-
uation and report by Dr. Wright, the State with-
conviction evidentiary hearing at the state trial court,
drew its motion for a psychiatric evaluation
Willis was interviewed by Dr. Mark Cunningham, a
and stated that no expert testimony of Willis's
clinical and forensic psychologist. During this inter-
mental state would be offered at trial. Pet. at
view, Willis stated that he recalled having been ex-
156.
amined by a psychologist while awaiting trial in the
Pecos County Jail. No reference to a report of a pretrial FN30. Ex Parte Willis, No. 27, 787-01 Find. of
psychological or psychiatric examination existed in the Fact and Conc. of Law at 2.
trial transcript, the trial exhibits, the case files of Wil-
lis's trial counsel, or the court's files. Consequently, an On Monday, July 20, 1987, the first day of testi-
FN31
investigation was conducted to determine whether Wil- mony in Willis's trial, Dr. Wright sent, by Federal
lis's recollection was accurate. Express, a final copy of the Wright report and the
Wright invoice from his office in San Angelo, Texas, to
As a result of the investigation, it was determined the District Attorney's office in Fort Stockton, Texas.
Dr. Jarvis Wright, a forensic psychologist, examined FN32
On Tuesday, July 21, 1987, at 2:41 p.m., the Fed-
Willis on July 12, 1987 and prepared a written report eral Express package with the Wright report and the
memorializing his findings. Dr. Wright forwarded a Wright invoice arrived at Johnson's office. Albert
copy of his report (the Wright report) to Willis's post- Valadez, the assistant prosecutor in Willis's trial, accep-
conviction counsel in December 1997. FN33
ted and signed for this Federal Express package.
Dr. Wright conducted the examination and prepared FN31. Willis's trial lasted two and one-half
FN29
the written report on behalf of the prosecution. weeks.
Before Willis's trial, the District Attorney's office con-
tacted Dr. Wright and requested a psychological exam- FN32. Ex Parte Willis, No. 27, 787-01 Find. of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 9
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

Fact and Conc. of Law at 3. Federal Express re- tual disputes related to Willis's claim that he is actually
cords, as well as Dr. Wright's records, are the innocent. Willis's version of the incident leading to ar-
source of all facts relating to the delivery and rest and the events surrounding the incident differ from
receipt of the Wright report. the State's theory of the case. Because the factual dis-
pute was not resolved by Judge Jones's findings of fact,
FN33. During the state habeas hearing, the the parties' factual allegations and corresponding argu-
State repeatedly denied that the prosecution ments are presented in the next section addressing the
had any knowledge of the Wright report, a innocence claim.
claim belied by the facts presented during hear-
ing. III. Innocence Claim
Due to other relief given on different grounds, it is
*8 Had Dr. Wright been called as a witness during not necessary for this Court to resolve the parties' dis-
the penalty phase of Willis's trial, he would have testi- pute regarding Willis's claim of innocence. But, to
fied, based on his examination of Willis, that he knew provide a background for the other substantive claims,
of no information that would justify a conclusion that the Court discusses in detail the facts Willis alleges.
FN34
Willis would be dangerous in the future. Further- The factual allegations recited here are from Willis's pe-
more, the Wright report stated that if sworn testimony tition and were not included in Judge Jones's factual
indicates that [Willis's] behavior until the time of the findings. Although Willis's allegations of innocence and
current alleged offense was no worse than his previous factual allegations supporting the claim were presented
behaviors, we could probably say with safety that the to the state trial court, the state trial court only made
current alleged behavior was an isolated event which he one factual finding concerning the innocence claim. The
FN35
probably will not repeat. Judge Jones found an state trial court found that David Long, who had con-
abundance of available evidence, through the testimony fessed to the crime for which Willis was convicted and
of acquaintances of Willis and law enforcement of- sentenced to death, refused to testify at the state eviden-
ficers, established that Willis had no history of violent tiary hearing. The state trial court determined that
behavior and that any prior episodes of misconduct Long's prior confession, which was tape recorded by
were nonviolent. law enforcement officers, was not sufficiently corrobor-
FN36
ated to be admissible. Therefore, other than Long's
FN34. Ex Parte Willis, No. 27, 787-01 Find. of
confession, these facts related to Willis's innocence
Fact and Conc. of Law at 4, citing Dr. Wright's
claim have been neither specifically rejected nor accep-
testimony at the state post-conviction hearing.
ted by the state court, though the state court did say that
FN35. Id. at 2, quoting Def. E.H. Ex. 25, at the testimony was insufficient to support a finding that
FN37
5-6. Willis is innocent.

Judge Jones therefore found that the prosecution FN36. Id. at 25.
failed to disclose the Wright report to the defense prior
FN37. Id. at 33.
to or during Willis's trial. Although Willis's trial attor-
neys agreed to allow the prosecutors to conduct a pre- A. The State's Theory of the Fire
trial psychological examination of Willis to ensure his *9 At trial, the State's experts testified that the burn
competency to stand trial, the prosecution did not reveal patterns and degree of burning indicated that a flam-
that an assessment of future dangerousness had also mable liquid was poured on the floor of the house,
been done. throughout the living and dining areas, in front of the
bedroom door jambs, around the front and back door
D. Facts Related to Willis's Innocence Claim
entrances, and beneath and on top of the sofa in the liv-
The state trial court did not resolve substantial fac-
ing area. The State's experts also testified that the fire

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 10
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

originated in the living area of the house and quickly, if carcerated, Long repeatedly told George Wheat, the su-
not simultaneously, ignited the dining room and kit- pervisor of Psychiatric Services at Ellis One Unit, that
chen. Thereafter the fire spread to the bedrooms. The he had set the Iraan fire. Initially, Long only told Wheat
State's arson investigators testified that if Willis had that there was an inmate on death row who Long knew
been sleeping on the sofa he would have been burned. was innocent because that inmate had been convicted of
a crime Long had committed. Over time, Long identi-
The State asserted that Willis's version of events FN40
fied Willis as the innocent inmate. Though Wheat
was incredible for two main reasons. First, while broken was initially skeptical of Long's confession, Wheat be-
glass was found outside the house, none was found in- came satisfied that the confession was truthful. Wheat
side, and thus the State said that the evidence did not decided the information had to be disclosed, and Long
support Willis's claim that he ran around the outside of signed a consent form for disclosure. Wheat then in-
the house trying to break windows so that the people in- formed the Warden, Pecos County law enforcement au-
side could escape. Second, Willis had no burn marks, no thorities, Willis and Willis's counsel at the time, of
singed clothing, no singed hair, did not smell like Long's confession. On September 11, 1990, Deputy
smoke, and his clothing did not have cinder marks. Jackson, one of the primary investigators of the Iraan
FN38
Two days after the fire, Willis had a very bad fire, conducted a nearly three-hour long videotaped in-
burn mark on his shoulder which Willis claimed oc- FN41
terview of Long.
curred in the fire but several witnesses, including Sher-
iff Wilson, stated Willis had no such injury the day of FN40. Long and Willis first met during recre-
the fire. ation time when Long asked Willis where he
was from; Willis answered Pecos. Long said he
FN38. A stain was found on the shirt, and the knew Billy Willis from Pecos and Petitioner
stain was identified as betadine, an antiseptic. Willis said Billy Willis had testified at his trial.
At this point, Long realized Petitioner Willis
Other evidence included the fact that the day after
was convicted of the crime Long committed.
the fire, Deputy Jackson, one of the investigators on the
Petitioner Willis was then transferred to a work
case, discovered that the front portion of the garden
program and so Willis and Long no longer
hose had been cut off. Jackson learned from the tenants
communicated at recreation time. Long reques-
that this was a new hose that had previously been intact.
ted a legal visit with Willis but decided not to
Later, Jackson found a smaller portion of the garden
say anything until he saw how Willis's direct
hose, a trace analysis of which indicated the presence of
appeal resolved. Long contemplated not saying
gasoline. No known accelerant was positively identified
anything until the hour of his own execution.
on Willis's pants.
Long requested a second legal visit at which
FN39 time Long asked about Willis's direct appeal.
B. Confession of David Martin Long
Willis said his conviction and sentence were
FN39. While the state court found the corrob- affirmed. At this point, Long told Willis that he
oration of Long's confession insufficient, the committed the Iraan fire.
corroborating witnesses were: David Paulk,
Amelia Fuentes, Billy Willis, George Wheat, FN41. Prior to the interview, Jackson read
Michael and Cheryl Robinson and Marshall Long his Miranda rights.
Smyth. See Pet. at 44-48.
The substance of Long's confession is as follows:
Long was an inmate confined at the same facility Long set the fire because he wanted to hurt or kill Billy
with Willis. He was convicted of capital murder on an Willis, Petitioner's cousin. Billy and Long were long-
unrelated charge and has since been executed. While in- time associates who participated in various criminal
activities together, usually drug related. On June 10,

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 11
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

1986, Long drove to Iraan from Round Rock, Texas, During the investigation of the fire, Mrs.
where Long lived, to purchase some drugs from Billy. Fuentes toldDeputy Jackson about the vehicle.
In his pick-up truck, Long carried a half-gallon bottle of He told her to forget about it. Pet. at 23, citing,
Wild Turkey alcohol mixed with Everclear grain alco- Tr. at 146, ll. 19-23 (Fuentes), May 23, 1996.
hol and some methamphetamine. Long arrived in Iraan
sometime between 2:00 a.m. and 4:00 a.m. He parked FN44. The modus operandi of both fires was
his truck about a block away from the Robinson house similar. Long set fire to the Bay City victim's
where Billy was staying. He sat in the truck for about trailer using liquor as an accelerant, as he
twenty minutes drinking the Wild Turkey and Everclear claimed he did in the Iraan fire. The reason
mixture and injecting himself with methamphetamine. Long gave for killing the victim of the Bay
He then went into the house with the Wild Turkey and City fire and for attempting to kill Billy Willis
Everclear mixture. was the same, that he held a grudge against
both and snapped in their presence. The Bay
*10 Long testified that as he was in the house he City fire confession was used by the State in
FN42
became overcome with anger, and poured the Long's capital murder trial for a triple axe
Wild Turkey and Everclear mixture on the carpet murder for which he was convicted and sen-
around the dining room table and around the living tenced to death. Furthermore, in Long's direct
room. Long did not pour any of the mixture on the appeal, the Court of Criminal Appeals upheld
couch where Willis was sleeping, because he did not the admission of the Bay City confession and
want to wake him. Long then used his Bic lighter to ig- stated it was corroborated by other witness'
nite some clothing draped over a piece of furniture in testimony. Long v. State, 823 S.W.2d 259, 268
the living room. After setting the fire, Long left the n. 12 (Tex.Crim.App.1991).
house, returned to his truck, and drove a couple of
FN43 C. Willis's Evidence Contradicting the State's Theory of
blocks down the street. He then left Iraan. Long FN45
stated he used the same method to start the fire in Iraan the Fire
as he did to start a fire in Bay City, Texas, that also
FN44 FN45. This opinion provides only a short sum-
killed someone. Finally, during his confession,
mary of the evidence presented during the state
Long described the Robinson house in great detail.
post-conviction hearing that negates the State's
FN42. Long stated that the feeling started theory of the fire. A full description of the
coming over me, the bitterness that I have to- evidence presented and a description of Mr.
ward Billy, which I had not ever went down in- Smyth's qualifications and methodology can be
to detail about, things that happened in the found at Pet. at 25-36.
past. And when this happens to me, I kind of
At the state post-conviction hearing, Marshall
like get locked in my mind and things go black
Smyth, a fire investigator, testified for Willis. Smyth's
and white, and I started feeling an extreme bit-
testimony corroborates Long's accounts, shows that the
terness toward him, because at one time I was FN46
State's theory of the case was mistaken and sup-
going to shoot him ... because of some things
ports Willis's version of the events. The State had a
that happened in the past.... Pet. at 22, citing
pour pattern theory of the fire, meaning that in every
Def. E.H. Ex. 4 at 14, ll. 17-24 (Long).
area of the house where there was burn damage, an ac-
FN43. Mrs. Amelia Fuentes, who lived across celerant had been poured. Under this theory, Willis
the street from the Robinson house, saw a could not have run out of the house because the floor
vehicle traveling slowly past her house on Fifth would have been in flames. According to the pour pat-
Street before any of the police or fire vehicles tern theory, Willis would have had to spread accelerant
arrived. She had never seen the vehicle before. in or near bedrooms and exits for the fire to burn as it

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 12
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

did. Other evidence disputes the State's theory of the

case. The clothes Willis wore on the night of the fire
FN46. Deputy Jackson, one of the State's arson were submitted to the State's lab; no accelerant was
experts, admitted during his interview of Long found on the clothes. In addition, accelerant was not
that he is not much of a[sic] arson investigat- found on the carpet samples from the Robinson house
or. Pet. at 26, citing, Def. E.H. Ex. 4 at 74, ll. that were submitted to the lab, and the State never pro-
5-6. duced any evidence regarding the type of accelerant
used to start the fire, according to the State's theory. Fi-
Smyth testified that the pour pattern theory was
nally, consistent with Willis's statement regarding his
physically impossible, and that the burn damage to the
actions upon discovering the fire-that he awoke to the
house could not have been caused by an accelerant such
house already on fire and ran around trying to rouse
as gasoline. Instead, Smyth testified that the burn dam-
others-Willis left in the house his boots, socks and pain
age throughout the house was the result of flashover
medication.
conditions throughout the house during various points
FN47
in the fire. Smyth also testified that, consistent *11 In addition, Willis argues that his post-fire de-
with Long's account of the fire, the maximum area of meanor, which the State used as evidence of guilt dur-
origin of the fire was the living room and dining room. ing Willis's trial, can be explained in a manner that also
FN48
Smyth's tests showed that it would have taken ap- supports his innocence. At the time of the fire, Willis
proximately ten to eleven minutes for the fire to spread was receiving care for chronic back pain and had under-
from the chair where it was ignited, according to Long, gone four back surgeries as a result of injuries suffered
to the surrounding carpeting soaked with the alcohol in past years as an oil field worker. Willis's prior back
mixture. That period of time is consistent with Willis's surgeries resulted in a chronic condition called arach-
description that, once awakened, he ran through the noiditis. As a result, at the time of the fire, Willis was
house and then exited through the front door without taking prescription opiate drugs like Talwin and Per-
serious injury. FN49
codan to make his back pain tolerable. Two days
before the fire, on June 9, Willis went to the emergency
FN47. Flashover is a transition point, actually,
room because of excruciating back pain. He was given
in the development of a fire inside a compart-
an injection of Butorphanal and some Phernergan. Later
ment or room. And it's the point at which the
that day he took at least nine 50 mg. tablets of Talwin.
burning materials in this fire became so strong
that they form a gas cloud under the ceiling of FN49. For exact quantities of the drugs taken,
the room. And this gas cloud thickens up. And see Pet. at 39-40.
at some point temperatures on the floor are
raised to their-the ignition point of the materi- The next day, the day before the fire, at around 4:00
als due to the radiation of the heat from the gas a.m., Willis again went to the emergency room, where
cloud. And, at that point, all the combustible he was given a dose of Demerol and some Emet-Con, a
materials in the room essentially simultan- drug for treatment of nausea. He returned to the Robin-
eously burst into flame. So it's that transition son house at 7:00 a.m., took three tablets of Talwin and
point in the buildup of a fire from something a muscle relaxant. Two hours later, he was still in pain,
less than full room involvement to the point and he took another three tablets of Talwin. An hour
where all the materials in the room are in- later he went to see Dr. Edwin Franks, who gave him a
volved in the flame. Pet. at 28, citing Tr. at steroid injection and a prescription for additional back
32, ll. 9-33 (Smyth), Jan. 12, 1998. pain medications. Throughout the rest of the day, Willis
took at least six more Talwin tablets and one Percodan
FN48. Pet. at 28, n. 12, citing Tr. at 112, ll. tablet. In addition, between 6:00 p.m. and midnight,
7-14 (Smyth), Jan. 12, 1998. Willis drank approximately six cans of beer, and took

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 13
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN50 FN53
more Talwin and Percodan before going to sleep. house.

FN50. Pet. at 40, citing Lipman Depo. at 17, ll. FN53. Pet. at 42, citing Trial Tr., vol. 19 at
18-19, Jun. 8, 1998. The levels of pain medica- 140, ll. 8-13 (Deputy Jackson).
tion that Willis took on June 9-10, 1986 were
not unusual for chronic back pain patients. Id. *12 Finally, Willis argues that there was no motive
at 20, ll. 1-15. to support the State's theory of the fire and that Willis
had no motive to set the fire. Willis argues that at no
Willis contends the drugs he took in the two days point in the investigation of the fire, the trial or the
before the fire would have affected his outward appear- post-conviction proceedings did the State produce evid-
ance in the time period immediately after the fire. Spe- ence of any motive. And Willis, who was forty-two
cifically, he claims the drugs would make him appear years old at the time of the crime, had never before been
unemotional and unexcited. Also, he claims the alcohol charged with a violent crime.
consumed would have contributed to his low affect and
FN51 D. Analysis of Willis's Innocence Claim
to the suppression of his coughing after the fire.
The state trial court rejected a finding of innocence
FN51. Id. at 25, ll. 9-27. in this case. The state trial court found that Willis
failed to produce sufficient evidence to corroborate the
The State asserted at trial that Willis's account of FN54
statement of Mr. Long, and thus found Mr.
the fire was not believable because Willis was not in- FN55
Long's confession inadmissible. At post-
jured. Two days after the fire, Willis did have a very conviction proceedings, the state trial court therefore
bad burn on his shoulder, but the State claimed the burn held that the testimony in the record does not support a
was not present the day of the fire and thus was not FN56
finding that Willis is innocent.
caused by the fire. During the state post-conviction
hearing, Willis put forth evidence that blistering does FN54. Ex Parte Willis, No. 27, 787-01 Find. of
not necessarily occur immediately as a result of thermal Fact and Conc. of Law at 6.
burning and thus the appearance of the burn on Willis
FN52 FN55. The state trial court does not cite any au-
two days after the fire was not unusual.
thority requiring that or explaining why the
FN52. Pet. at 40, citing Lipman Depo. at 77, ll. confession must be corroborated to be admiss-
1-7, Jun. 8, 1998. ible. However, under Texas law, an extrajudi-
cial confession of wrongdoing, standing alone,
One of the state investigators, Deputy Jackson, test- is not sufficient to support a conviction; other
ified at trial that Willis's account that he ran around the evidence must exist, demonstrating that a crime
outside of the house breaking windows in an effort to has in fact been committed. See Rocha v. State,
help the people still inside could not be truthful because 16 S.W.3d 1, 4 (Tex.Crim.App.2000).
glass was found only on the outside of the house. Willis
claims the windows to the Robinson house were a par- FN56. Ex Parte Willis, No. 27, 787-01 Find. of
ticular type that prevented the glass from falling into the Fact and Conc. of Law at 33.
house. Willis claims that the windows consisted of two
panels, a lower portion and an upper. When opened, he In Herrera v. Collins, the Supreme Court held that
claims, the lower portion slides above the upper portion, [c]laims of actual innocence based on newly dis-
creating two layers of glass. Willis claims the windows covered evidence have never been held to state a ground
were open the night of the fire and that when he broke for federal habeas relief absent an independent constitu-
the upper part of the window, the lower part, as a tional violation occurring in the underlying state crimin-
FN57
second layer, prevented the glass from falling inside the al proceeding. In Herrera, the Court did assume
for the sake of argument ... that a truly persuasive

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 14
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

demonstration of actual innocence made after trial tion occurs when a new rule of law places certain kinds
would render the execution of a defendant unconstitu- of primary, private individual conduct beyond the
FN58
tional. Since Herrera, the lower courts dispute power of the criminal law-making authority to pro-
FN63
whether federal habeas relief is available based on a scribe. The second exception occurs when the
showing of innocence without a constitutional error at new rule of law requires the observance of those pro-
trial. While the Ninth and Seventh Circuits held that cedures that are implicit in the concept of ordered
FN64
habeas relief is available based upon a post-conviction liberty.
FN59
showing of innocence alone, the Fifth Circuit re-
jected this rule and holds that newly discovered evid- FN61. 489 U.S. 288 (1989).
ence related to innocence is not sufficient grounds alone
FN60 FN62. See Williams, 529 U.S. at 380.
for habeas relief. Willis acknowledged that even if
this Court found innocence, relief would nevertheless be FN63. Teague, 489 U.S. at 307 (internal cita-
unavailable to him under the law of this Circuit. tions omitted).
FN57. 506 U.S. 390, 400 (1993). FN64. Id.
FN58. Id. at 417. If the Supreme Court were to find that an innocence
claim were cognizable in habeas, this Court has no
FN59. See Jackson v. Calderon, 211 F.3d 1148,
doubt that, for a petitioner who could make a showing
1164 (9th Cir.2000), cert denied, 531 U.S.
of actual innocence, the first Teague exception would
1072 (2001); Carriger v. Stewart, 132 F.3d FN65
apply, and thus Teague would not bar relief. But
463, 476 (9th Cir.1997) (en banc), cert denied,
under this Circuit's current jurisprudence, innocence
523 U.S. 1133 (1998); Milone v. Camp, 22
alone is not a sufficient basis for federal habeas relief.
F.3d 693, 699 (7th Cir.1994), cert denied, 513 FN66
While both parties' presentations to the Court in
U.S. 1076 (1995).
cross-motions for summary judgment raise strong reas-
FN60. Lucas v. Johnson, 132 F.3d 1069, 1074 on to be concerned that Willis may be actually innocent,
(5th Cir.1998) (holding that the existence under Herrera and Lucas, innocence is not a cognizable
merely of newly discovered evidence relevant claim in habeas; thus, it would be inappropriate for this
to the guilt of a state prisoner is not a ground Court to determine the issue. In any event, the determin-
for relief on federal habeas corpus.). See also ation is unnecessary because the Court must grant Wil-
Robinson v. Johnson, 151 F.3d 256, 267 (5th lis's writ on other grounds.
Cir.1998), cert denied, 526 U.S. 1100 (1999).
FN65. The Teague exceptions are not part of
The Fourth Circuit has likewise refused to re-
section 2254(d)'s deference provisions. The Su-
cognize an actual innocence claim alone. See
preme Court has not yet resolved the tension
Royal v. Taylor, 188 F.3d 239, 243 (4th
between Teague and section 2254 in that re-
Cir.1999).
gard.
The State did not address any of the factual allega-
FN66. Herrera v. Collins, 506 U.S. 390, 400
tions of innocence proffered by Willis. Instead, the
(1993); Dowthitt v.. Johnson, 230 F.3d 733,
State claims that because actual innocence is not a cog-
741-42 (5th Cir.2000), cert. denied, 532 U.S.
nizable claim in habeas, Willis's innocence claim is
915 (2001).
barred by the nonretroactivity rule of Teague v. Lane.
FN61
Teague prevents application of novel rules of law IV. Administration of Medically Inappropriate Anti-
FN62
to petitioners whose convictions are final. There psychotic Medications
are two exceptions to the Teague rule. The first excep- *13 During the evidentiary hearing on Willis's state

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 15
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

habeas petition, evidence and testimony were presented er, 494 U.S. 210, 222 (1990), was decided on
concerning his claim that the State's wrongful adminis- February 27, 1990, before Willis's conviction
tration of antipsychotic drugs denied Willis of due pro- became final. As explained in the text of this
cess and other constitutional rights. At the conclusion of opinion, Harper explicitly states that State ad-
the hearing, Judge Jones entered detailed findings of ministered antipsychotic drugs must be medic-
fact regarding the administration of the medication by ally appropriate. Furthermore, subsequent Su-
the State, the effect on Willis and the lack of any justi- preme Court cases-namely Riggins and United
fication for the medication. These findings were sum- States v. Sell, 539 U.S. 166 (2003)-state that
marized above. Judge Jones then entered conclusions of the rule of law emanated from Harper. In
law recommending relief be granted on the claim. Penry v. Lynaugh, 492 U .S. 302 (1989) (Penry
I ), the Supreme Court held that dicta in Jurek
Judge Jones held that the administration of anti- v. Texas, 428 U.S. 262 (1976), established law
psychotic medication to Willis during his trial denied for Teague purposes. Thus, the statements in
him the ability to assist in his own defense in violation Harper-that due process requires that state ad-
FN67
of his right to counsel, and prejudicially affected ministered antipsychotic drugs be medically
his demeanor at trial in violation of substantive due pro- appropriate-are sufficient for Teague purposes
FN68
cess rights. In addition, the trial court held that the in Willis's case, even if they are dicta.
State can only administer medication to a defendant in-
voluntarily if the standard articulated by the Supreme Judge Jones found that the administration of the
Court in Riggins is met: 1) administration of the drugs drugs to Willis was not medically appropriate, not es-
was medically appropriate and, considering less intrus- sential for the safety of Willis or others, and not neces-
ive alternatives, essential for the sake of [the defend- sary to accomplish an essential state policy. Further-
ant's] own safety or the safety of others; 2) administra- more, Judge Jones held a showing of prejudice was not
tion of the drugs was medically appropriate and that the required because under Riggins, there is a strong pos-
FN70
prosecution could not obtain an adjudication of [the sibility that trial defense was impaired.
defendant's] guilt or innocence by using less intrusive
means; or 3) that the administration of medication was FN70. Ex Parte Willis, No. 27, 787-01 Find. of
necessary to accomplish an essential state policy. Fact and Conc. of Law at 13, quoting Riggins,
FN69 504 U.S. at 138.

FN67. See Riggins v. Nevada, 504 U.S. 127, Judge Jones also found that the administration of
133, 142 (1992). antipsychotic medications to Willis violated Willis's
right to confront witnesses because a defendant's phys-
FN68. See id. at 131. ical presence and demeanor in the courtroom are essen-
FN71
tial to the exercise of his confrontation rights. The
FN69. Id. at 135-36, 138. The state trial court medication given to Willis left him unable to confer
based its analysis of this claim largely on Rig- with counsel and unable to exhibit any emotive re-
gins. The CCA denied the claim based on a pri- sponse to the testimony of adverse witnesses. Further-
or CCA opinion interpreting Riggins. In addi- more, Willis was prevented from reacting or responding
tion, both parties have extensively briefed Rig- to the proceedings and was not able to demonstrate
gins. Though not raised by the state trial court, FN72
sensitivity or compassion.
the CCA or either party, the Court notes that
Riggins was decided in 1992, two years after FN71. Id., citing Riggins, 504 U.S. at 142. See
Willis's conviction became final on direct ap- also Coy v. Iowa, 487 U.S. 1012, 1020 (1988).
peal, on October 9, 1990. However, the Su-
preme Court's decision in Washington v. Harp- FN72. Ex Parte Willis, No. 27, 787-01 Find. of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 16
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

Fact and Conc. of Law at 13. at 2 (Tex.Crim.App.2000), citing Ex Parte

Thomas, 906 S.W.2d 22 (Tex.Crim.App.1995).
Judge Jones found the administration of the medic-
ation also violated a number of other constitutional FN75. Though the CCA addressed Willis's
rights. First, the medicine prevented Willis from assist- medication claim on the merits, the CCA did
ing in his own defense and denied him his Sixth not address the lack of medical justification for
Amendment right to the effective assistance of counsel. the antipsychotic drugs the State administered
Willis was unable to communicate with counsel or to Willis. However, the state trial court made a
make tactical decisions during trial. Thus the adminis- finding of fact as to the lack of medical justific-
tration of the medication was an actual or constructive ation, and Willis raised the lack of medical jus-
denial of the right to counsel by the State and not sub- tification on appeal to the CCA as part of his
ject to a prejudice showing. Second, the medication of claim for relief. Thus, the CCA's rejection of
Willis and his resulting demeanor effectively forced Willis's medication claim is an implicit finding
Willis to testify against himself in violation of the Fifth that the lack of medical justification is not a
Amendment. This is especially so because the prosecu- ground for relief.
tion used Willis's demeanor as evidence of his guilt. Fi-
nally, Judge Jones found the administration of the med- As explained below, the CCA erred on both
ication violated Willis's right to an individualized capit- grounds. First, the State cannot administer antipsychotic
FN73 drugs unless medically appropriate according to Su-
al sentencing determination.
preme Court holdings, and thus the CCA's denial of re-
FN73. Id. at 14-16. lief when Willis was medicated with antipsychotic
drugs without medical justification is contrary to clearly
*14 The Court of Criminal Appeals overruled the established federal law. Second, the CCA's determina-
trial court's recommended relief on this claim in one tion that an objection is a necessary condition of invol-
paragraph. Citing a Texas case, the CCA held that be- untariness is contrary to clearly established federal law
cause there was no motion to terminate medication or regarding waiver of constitutional rights. In this case,
an objection to the medication in the record, Willis has no evidence exists that either Willis or defense counsel
FN74
not demonstrated his treatment was involuntary. knew of the existence or nature of the medication.
The CCA based its ruling on a legal determination that a
showing of involuntariness requires an objection in the A. Administration of Medically Inappropriate Drugs
record. Because the CCA's overruling of the trial court After the state habeas hearing, the trial court found
was not inconsistent with the trial court's findings, but the State administered the antipsychotic drugs to Willis
FN76
instead, a determination that the facts did not warrant without any medical need. This determination is
relief under the legal standard, this Court must defer to supported by the record. Three experts testified during
the state trial court's findings of fact. Thus, the issues the state habeas hearing that they were unable to find
before this Court are: 1) whether the CCA's holding that any evidence of psychosis or other mental disorder in
FN77
an objection is a necessary condition for a finding of in- Willis's medical or behavioral history. Further-
voluntariness is contrary to, or an unreasonable applica- more, none of the records from the Pecos County Jail
tion of, clearly established federal law and 2) whether indicate that Willis was suffering from a psychotic dis-
FN78
the CCA's implicit determination that the State can ad- order or exhibiting symptoms of psychosis. Nu-
minister antipsychotic medication to pre-trial inmates merous medical intake forms for Willis's admission to
with no established medical need is contrary to, or an the Pecos County Jail state that Willis had never been
FN79
unreasonable application of, clearly established federal treated for mental illness. One of the forms was
FN75
law. filled out after Willis received antipsychotic medication
in the Pecos County Jail. Disciplinary records from the
FN74. Ex Parte Willis, No. 27, 787-01, Order Pecos County Jail state that Willis is negative for a his-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 17
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN80
tory of mental illness. The report of the psycholo- 227).
gical exam administered to Willis at the time of trial
stated there was no evidence that Willis was psychotic. In upholding a state procedure for involuntary med-
FN81 ication of antipsychotic drugs in Washington v. Harper,
Additionally, Willis's eleven-year records from
TDC do not contain any evidence of a psychotic dis- the Supreme Court was careful to recognize that the
FN82 state procedure required that the administration of med-
order. FN85
ication be medically appropriate. Because the state
FN76. Ex Parte Willis, No. 27, 787-01 Find. of procedure at issue in Harper recognized the petitioner's
Fact and Conc. of Law at 11. medical interests, it met the requirements of the Due
FN86
Process Clause. In a lengthy footnote, the Court
FN77. See e.g., Crowder Dep.; Lipman Dep.; detailed that it would not adopt the State's procedure if
Cunningham Dep. the procedure did not require a finding of medical ap-
propriateness before antipsychotic medication can be in-
FN78. See e.g., Tr. at 267, ll. 1-14 FN87
voluntarily administered.
(Cunningham).
FN85. 494 U.S. at 223, n. 8.
FN79. Def. E.H. Ex. 30.
FN86. Id. at 223.
FN80. Def. E.H. Ex. 29 at 93, 117, 123, 129,
142; Crowder Dep., ll. 16-21. FN87. Id. at 223, n. 8. See also id. at 227
(holding that the Due Process Clause permits
FN81. Tr. at 177, ll. 2-14 (Wright).
the State to treat a prison inmate who has a
FN82. Lipman Dep. at 44, ll. 16; Crowder Dep. serious mental illness with antipsychotic drugs
at 42, ll. 18-23 (We never see any psychosis against his will, if the inmate is dangerous to
appear in his extensive TDC records.); himself or others and the treatment is in the in-
Crowder Dep. at 51, ll. 16-21. mate's medical interest. ) (emphasis added).
[W]e hold that the regulation before us is per-
*15 A significant liberty interest exists in avoiding missible under the Constitution. It is an accom-
unwanted administration of antipsychotic drugs under modation between an inmate's liberty interest
the Due Process Clause of the Fourteenth Amendment. ... and the State's interests in providing appro-
FN83
But, due process will allow a mentally ill inmate priate medical treatment.... Id. at 236
to be treated involuntarily with antipsychotic drugs (emphasis added). The dissent in Harper ex-
where there is a determination that ... the treatment is in plains the majority's decision as follows:
FN84
the inmate's medical interest. [A]lthough the Court does not find, as Harper
urges, an absolute liberty interest of a compet-
FN83. Harper, 494 U.S. at 222; Parham v. ent person to refuse psychotropic drugs, it does
J.R., 442 U.S. 584, 600-601 (1979). See also recognize that the substantive protections of the
Youngberg v. Romeo, 457 U.S. 307, 316 (1982) Due Process Clause limit the forced adminis-
(core liberty protected by due process, freedom tration of psychotropic drugs to all but those
from bodily restraint, survives criminal convic- inmates whose medical interests would be ad-
tion, incarceration and involuntary commit- vanced by such treatment. Id. at 243 (Stevens,
ment). J., dissenting).

FN84. Riggins, 504 U.S. at 135 (internal quota- The rule of Harper was reiterated in Riggins where
tions and citations omitted) (stating the Su- a state involuntary medication procedure was found in-
preme Court's holding in Harper, 494 U.S. at FN88
adequate. Under Harper, forcing antipsychotic

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 18
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

drugs on a convicted prisoner is impermissible absent a FN94. Id. at 177.

finding of overriding justification and a determination
FN89 FN95. Id. at 180.
of medical appropriateness. The Riggins Court
noted that a pretrial detainee-the petitioner in Riggins-
FN96. Id. at 181. [T]he court must conclude
enjoyed as much constitutional protection as the con-
FN90 that involuntary medication will significantly
victed prisoner at issue in Harper.
further those concomitant state interests. It
FN88. 504 U.S. 127 (1992). must find that administration of the drugs is
substantially likely to render the defendant
FN89. Id. at 135 (emphasis added) (internal competent to stand trial. At the same time, it
quotations and citations omitted). must find that administration of the drugs is
substantially unlikely to have side effects that
FN90. Id., citing Bell v. Wolfish, 441 U.S. 520, will interfere significantly with the defendant's
545 (1979). ability to assist counsel in conducting a trial
defense, thereby rendering the trial unfair. Id.,
Applying the rule of Harper to the procedures em-
citing Riggins, 504 U.S. 142-45 (emphasis in
ployed by the State, the Riggins Court held that the
original).
State certainly would have satisfied due process if the
prosecution had demonstrated, and the District Court FN97. Id. ([t]he court must find that any al-
had found, that treatment with antipsychotic medication ternative, less intrusive treatments are unlikely
was medically appropriate and, considering less intrus- to achieve substantially the same results. And
ive alternatives, essential for the sake of Riggins' own the court must consider less intrusive means for
FN91
safety or the safety of others. Alternatively, the administering the drugs.).
State might have been able to justify medically appro-
priate, involuntary treatment with the drug by establish- FN98. Id.
ing that it could not obtain an adjudication of Riggins'
FN92 The State argues that Harper and Riggins are not on
guilt or innocence by using less intrusive means.
point because both cases addressed situations in which a
FN99
FN91. Id. (emphasis added). formal objection was made to the medication. The
argument is inapposite. The Court in both Harper and
FN92. Id. (emphasis added). Riggins assumed the medication was medically appro-
FN100
priate. Thus, assuming the medication is medic-
The rule of Harper was reaffirmed again in United
FN93 ally appropriate, the issue in both cases became what
States v. Sell. There, the Supreme Court ad-
procedures must the State go through in order to medic-
dressed whether a State may forcibly administer anti-
ate an inmate against his will. In this case, on this re-
psychotic drugs to a criminal defendant in order to
FN94 cord, no such assumption can be made. Indeed, the re-
render him competent to stand trial. The Court
cord does not support that assumption, and the state
held a four-part test must be met to involuntarily medic-
court found that in fact the medication was not medic-
ate a criminal defendant: 1) important governmental in-
FN95 ally appropriate. Harper followed by Riggins and Sell
terests are at stake; 2) involuntary medication will
FN96 make clear that medical appropriateness is always a
significantly further those interests; 3) involun-
condition precedent to the involuntary administration of
tary medication is necessary to further those interests;
FN97 antipsychotic drugs to inmates.
and 4) administration of the drugs is medically
appropriate, i.e., in the patient's best medical interest in FN99. The State's motion for summary judg-
FN98
light of his medical condition. ment was written before the Supreme Court's
decision in Sell, 539 U.S. 166.
FN93. 539 U.S. 166 (2003).

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 19
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN100. Harper, 494 U.S. at 223, n. 8 (... we FN103. 256 F.3d 257, 259 (5th Cir.2001).
will not assume that physicians will prescribe
these drugs for reasons unrelated to the medical FN104. 947 F.Supp. 1021, 1084
needs of the patients; indeed, the ethics of the (W.D.Tex.1996).
medical profession are to the contrary.); Rig-
FN105. Id.
gins, 504 U.S. at 133 ( ... we presume that ad-
ministration of [antipsychotic drugs] was med- In all the cases uncovered by the Court in which an-
ically appropriate.). tipsychotic medication was found to be voluntary, there
was evidence in the record that the recipient knew of
*16 Because Supreme Court precedents are unequi- FN106
the medication and often requested it. There is no
vocal that antipsychotic medication administered by the
such evidence in the record for Willis's case. Also, the
State must be medically appropriate, the CCA's rejec-
antipsychotic medication was given without medical
tion of Willis's due process claim, when the record is
need, strongly indicating that it was not just given in-
clear that Willis was medicated with no medical need, is
FN101 voluntarily but also given without Willis's knowledge.
contrary to clearly established federal law.
The Court finds it unlikely that a reasonable and com-
FN101. See 28 U.S.C. 2254(d). petent person would voluntarily take high doses of un-
necessary antipsychotic drugs without evident medical
FN107
B. Whether a Showing of Involuntariness Requires an need.
Objection
The Court now addresses whether the CCA's hold- FN106. See e.g., Ex Parte Thomas, 906 S.W.2d
ing that an objection is a necessary condition for a find- 22; Fearance v. Scott, 56 F.3d 633 (5th
ing of involuntariness is contrary to, or an unreasonable Cir.1995), cert. denied, 515 U.S. 1153 (1995);
application of, clearly established federal law. The state Adanandus v. Johnson, 947 F.Supp. 1021
trial court made a factual finding that Willis did not (W.D.Tex.1996).
FN102
consent to the medication. This finding was not
FN107. In stating that a showing of involuntar-
rejected by the Court of Criminal Appeals. Instead, the
iness can only be made through an objection,
CCA stated that because there was no objection on the
the CCA cited only one case, its own decision
record, Willis could not make a legal showing of invol-
in Ex Parte Thomas. There, the defendant ini-
untariness.
tially requested the medication and later
FN102. Ex Parte Willis, No. 27, 787-01 Find. claimed to object to it. Defense counsel in that
of Fact and Conc. of Law at 9. case was aware of the medication. Thus, the
facts surrounding the voluntariness of the med-
The State argues that the medication administered ication in Ex Parte Thomas are quite different
in both Harper and Riggins was determined involuntary than the facts surrounding involuntariness in
because the inmate had objected to it on the record. But the instant case.
in neither of those cases did the Court require a recor-
ded objection as a necessary element to a showing of in- Though not specifically found by the state trial
voluntariness. The State also cites Richardson v. John- court in post-conviction findings, there is evidence in
FN103 FN104 the record that Willis was not aware he was taking anti-
son, and Adanandus v. Johnson, but FN108
neither of those cases included a finding of non-consent. psychotic medication. Willis was receiving sev-
Furtermore, in Adanandus, there was no finding that the eral medications each day for back pain. The State notes
FN105 that when Willis was given the medication, he placed
petitioner had actually been medicated. Thus,
neither case is instructive. his initials on the medication log sheet. The record
though does not demonstrate that Willis knew the ini-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 20
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

tials indicated anything other than receipt of his back FN112. Boykin v. Alabama, 395 U.S. 238, 242
pain medication, and because he expected to receive the (1969) (the Court noted that several constitu-
back medication, Willis would not have had reason to tional rights are involved in a waiver that ac-
question the medication. Because the State medicated companies a guilty plea).
Willis with antipsychotic drugs in the absence of any
FN109 FN113. Barker v. Wingo, 407 U.S. 514, 524
medical need, Willis would have had no reason
to suspect the drugs were antipsychotics. The initials do (1972).
not suggest Willis understood what medication he was
FN110 FN114. Id. at 526 (applying the standard used
receiving.
in Carnely, 369 U.S. at 516 and Boykin, 395
FN108. See Pet. at 78-81. U.S. at 242).

FN109. Ex Parte Willis, No. 27, 787-01 Find. Thus, the ordinary rule is that a court cannot infer a
of Fact and Conc. of Law at 11-12. waiver of a constitutional right from the failure to ob-
FN115
ject. In light of the constitutional rights implic-
FN110. Also, Willis's Pecos County Jail medic- ated when a defendant is medicated with antipsychotic
FN116
al records did not meet statutory requirements. drugs, there is no reason to deviate from this es-
See Pet. at 81, n. 37; 37 TEX. ADMIN. CODE tablished standard for waiver, nor is any such explana-
273.4. See also Lipman Dep. at 38, ll. 16-39, tion given by the CCA. Because the CCA impermissibly
l. 3 (I can find no pharmacologically appropri- deemed the medication voluntary from a silent record,
FN117
ate basis for [the] prescription of the anti- a determination that Willis's medication was
psychotic medication to Willis in the Pecos voluntary is an unreasonable application of clearly es-
County Jail records or other supporting docu- tablished Supreme Court precedents on waivers of con-
FN118
ments.). stitutional rights.

*17 While the Supreme Court has not discussed the FN115. Id. at 525 (... presuming waiver of a
standard for involuntariness specifically in the context fundamental right from inaction, is inconsistent
of involuntary medication, the Court has developed a with this Court's pronouncements on waiver of
standard for involuntariness used generally in a number constitutional rights.).
of other contexts. In the context of right to counsel, the
Supreme Court held that [p]resuming waiver from a si- FN116. See Riggins, 504 U.S. at 142 (Kennedy,
lent record is impermissible. The record must show, or J. concurring) (noting that side effects of anti-
there must be an allegation and evidence which show, psychotic drugs can compromise the right of a
that an accused was offered counsel but intelligently criminal defendant to receive a fair trial. The
and understandably rejected the offer. Anything less is drugs can prejudice the accused in two princip-
FN111 al ways: (1) by altering his demeanor in a man-
not waiver. The Supreme Court applied this
FN112 ner that will prejudice his reactions and
standard for waiver to the guilty plea context.
Also, the Supreme Court rejected state laws that denied presentation in the courtroom, and (2) by ren-
the application of the right to speedy trial unless the de- dering him unable or unwilling to assist coun-
FN113 sel. Id. Justice Kennedy also stated that med-
fendant demanded trial, and instead the Court ap-
plied the same standard articulate above to the analysis ication with antipsychotic drugs can effect a
FN114 defendant's constitutional rights, his right to
of a waiver of the right to a speedy trial.
testify on his own behalf and his right to coun-
FN111. Carnely v. Cochran, 369 U.S. 506, 516 sel. Id. at 142, 144.).
(1962).
FN117. The trial court determined that the fail-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 21
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

ure to object did not constitute consent. Harper creates an unacceptable risk of trial er-
ror and entitles the defendant to automatic va-
FN118. 28 U.S.C. 2254(d). catur of his conviction.).
The State then argues that even if the medication FN120. Riggins, 504 U.S. at 138. The State ar-
were involuntarily administered, Willis has not shown gues that the Riggins presumption of prejudice
he was prejudiced because he has not demonstrated he only applies on direct review, not in post-
was harmed in any manner. However, in Riggins, the conviction proceedings. The State provides no
Supreme Court held that once it has been established authority to support this argument. Further-
that a defendant was involuntarily medicated during a more, presumptions of prejudice have been
criminal trial without the proper due process considera- used in other post-conviction contexts. See
tions, because of the substantial probability of trial Burdine v. Johnson, 262 F.3d 336, 348-50 (5th
FN119 FN120
prejudice, prejudice is presumed. Addi- Cir.2001) (en banc), cert. denied, Cockrell v.
tionally, the Supreme Court's decisions in both Riggins Burdine, 535 U.S. 1120 (2002). Also, this part
and Harper recognized the severe effects of anti- of the State's argument seems to challenge the
psychotic medications and the potentially debilitating state trial court's findings of fact regarding the
effects of such medication on an accused's constitution- effects of the medication on Willis. However,
FN121
al trial rights. The Supreme Court noted that it is the State does not mention that the state trial
possible for side effects to impact outward appearance, court made findings of fact regarding this issue,
the content of testimony, the ability to follow the pro- nor argue that those findings are unreasonable
ceedings, the substance of communication with counsel, in light of the evidence presented. See 28
FN122
and comprehension at trial. Nevertheless, it is U.S.C. 2254(e)(1).
clear from the state trial court's findings of fact that
Willis was actually prejudiced, both because of the ef- FN121. Harper, 494 U.S. at 229-30
fect of the medication on Willis's demeanor and because (identifying the serious, even fatal, side ef-
the prosecution used Willis's demeanor as evidence of fects of antipsychotic drugs). See also Rig-
FN123
guilt and future dangerousness. As to the effect gins, 504 U.S. at 134; Sell, 539 U.S. at 185-86
on Willis's demeanor, the state court found Willis ex- (Whether a particular drug will tend to sedate a
hibited flat or little facial expression, inexpressiveness, defendant, interfere with communication with
rigidity of the facial muscles, a fixed gaze, drowsiness, counsel, prevent rapid reaction to trial develop-
confusion and diminished ability to communicate. Wil- ments, or diminish the ability to express emo-
lis's demeanor was markedly different at the post- tions are matters important to determinating the
conviction hearing, when the antipsychotic drugs were permissibility of medication).
FN124
no longer being given. As to the the prosecution's
use of Willis's demeanor as evidence of guilt and future FN122. Riggins, 504 U.S. at 137.
dangerousness, the trial court found the State asked the
FN123. Ex parte Willis, No. 27, 787-01 Find.
jury to infer guilt and propensity for future dangerous-
FN125 of Fact and Conc. of Law at 10-11.
ness from Willis's lack of feeling or emotion.
Therefore, the Court finds that Willis was actually pre- FN124. Ex Parte Willis, No. 27, 787-01 Find.
judiced by the State's administration of the antipsychot- of Fact and Conc. of Law at 10.
ic drugs.
FN125. Id. at 11.
FN119. Riggins, 504 U.S. at 138. See also Sell,
539 U.S. at 189 (Scalia, J. dissenting) (the *18 The State also argues that even if the medica-
Riggins Court held that forced medication of a tion were involuntary and harmful, it was medically ne-
criminal defendant that fails to comply with cessary. As discussed above, the state trial court made

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 22
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

detailed findings of fact that the medication of Willis tablish a Brady claim, a petitioner must demonstrate
was without medical need and those findings are prop- that 1) the prosecution suppressed or withheld evidence
erly before this Court. To the extent that the State chal- 2) favorable to the defense and 3) material to guilt or
FN131
lenges the finding that the administration of medication punishment.
lacked necessity, the State fails to engage in the requis-
FN126 FN129. Brady v. Maryland, 373 U.S. 83, 87
ite analysis outlined in the AEDPA. The State
has not rebutted the presumption of correctness afforded (1963).
to state court factual findings by clear and convincing
FN130. United States v. Bagley, 473 U.S. 667,
evidence, and a review of the record reveals that the
682 (1985).
factual findings of the state court are reasonable in light
FN127
of the evidence presented. FN131. East v. Johnson, 123 F.3d 235, 237
(5th Cir.1997).
FN126. See 28 U.S.C. 2254(e)(1).
Evidence is material if there is a reasonable prob-
FN127. See 28 U.S.C. 2254(d)(2).
ability that, had the evidence been disclosed to the de-
For the reasons provided above, the medication of fense, the result of the proceeding would have been dif-
FN132
Willis during trial violated his right to due process, both ferent. Four aspects of materiality govern the
FN133
because it was without medical need and also because it inquiry. First, a petitioner need not prove by a
was involuntary. Willis is entitled to relief on the claim preponderance that disclosure of the suppressed evid-
because the CCA's denial of the claim was contrary to, ence would have resulted ultimately in a sentence less
FN134
and an unreasonable application of, clearly established than death. The question is not whether the de-
FN128 fendant would more likely than not have received a dif-
federal law.
ferent verdict with the evidence, but whether in its ab-
FN128. Willis argues that the State's adminis- sence he received a fair trial, understood as a trial res-
tration of the medication violated a number of ulting in a verdict worthy of confidence. A reasonable
other constitutional rights: right to confront probability of a different result is accordingly shown
witnesses, remain free from self-incrimination, when the government's evidentiary suppression under-
FN135
effective assistance of counsel, and an indi- mines confidence in the outcome of the trial.
vidualized sentencing determination. These ar-
guments were raised to the state trial court and FN132. Kyles v. Whitley, 514 U.S. 419, 433
to the CCA. The trial court found that the ad- (1995).
ministration of medication violated all these
FN133. See id. at 434.
rights. The CCA did not address any of these
additional constitutional claims. Because this FN134. Id.
Court has granted relief on due process
grounds, the Court declines to address the other FN135. Id. (internal citations and quotations
bases for relief. omitted).

V. Prosecutorial Suppression of Evidence Second, the materiality analysis is not a sufficiency

FN136
Prosecutorial suppression of evidence that is favor- of the evidence test.
able to an accused violates due process where the evid-
ence is material either to guilt or punishment, irrespect- FN136. Id.
ive of the good faith or bad faith of the prosecution.
FN129 A defendant need not demonstrate that after discount-
A defendant need not request such evidence to
FN130 ing the inculpatory evidence in light of the undis-
trigger the prosecutor's duty to disclose. To es-
closed evidence, there would not have been enough

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 23
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

left to convict....One does not show a Brady violation whether evidence is favorable.
by demonstrating that some of the inculpatory evid-
ence should have been excluded, but by showing that FN141. Ex Parte Willis, No. 27, 787-01, Order
the favorable evidence could reasonably be taken to at 4.
put the whole case in such a different light as to un-
FN137 Willis argues that the CCA unreasonably applied
dermine confidence in the verdict.
Brady in finding the Wright report was not favorable.
FN137. Id. at 435. The Wright report contained two hypothetical scenarios,
differing on the issue of the nature of the evidence pro-
*19 Third, harmless error analysis does not apply. duced at trial. One of the scenarios was favorable and
FN138
And, fourth, materiality is assessed in terms of one was not. The favorable scenario was: if sworn evid-
all suppressed evidence considered collectively, not ence indicates that his behavior until the time of the cur-
FN139
item by item. rent alleged offense was no worse than previous behavi-
ors, we could probably say with safety that the current
FN138. Id. alleged behavior was an isolated event which he prob-
FN142
ably will not repeat. The other scenario was as
FN139. Id. at 436.
follows:
Judge Jones found that the State violated Brady by
FN142. Wright Report at 6. See Pet. at 166.
affirmatively or negligently failing to turn over the
Wright report to the defense. The CCA overturned Recent years may have seen more and more irre-
Judge Jones, stating that the Wright report was not fa- sponsibility or increasingly violent behaviors toward
vorable or material. The CCA did not question the trial others. If testimony reflects this to a significant de-
court's determination that the Wright report had been gree, we would certainly seem correct in assessing
suppressed, nor did it reject the trial court's findings of that he has passed through a behavioral door and that
fact. The CCA based its ruling on a determination that he will continue to commit vicious, violent type beha-
the facts, as found by the trial court, did not meet the viors. A deterioration over the years would certainly
standard of favorability or materiality. Because the seem to suggest that he would represent a continued
CCA's overruling of the trial court was not inconsistent FN143
threat to society.
with the trial court's factual findings, this Court must
FN140
defer to those trial court findings of fact. FN143. Id.

FN140. See Craker, 756 F.2d at 1213-14; West- The State presented no evidence during the penalty
ley, 83 F.3d at 721 n. 2. phase of the trial that would have triggered the second
scenario. The only prior criminal history presented a tri-
The CCA determined the Wright report was not fa- FN144
al involved non-violent offenses.
vorable for two reasons: first, because at the evidentiary
hearing Wright testified that he was unable to gather FN144. Ex Parte Willis, No. 27, 787-01 Find.
sufficient information during the examination of Willis of Fact and Conc. of Law at 6.
to make a future dangerousness determination, and
second, because the conclusions in the report were In support of his argument that the CCA erred in
hypotheticals. Dr. Wright's report states that the data holding the Wright report to be not favorable, Willis re-
I was able to collect concerning Willis was [sic] insuffi- lies upon a Fifth Circuit case, holding that evidence
cient for determining whether he would pose a continu- meets the Brady standard of materiality, if it is both in-
FN141 FN145
ing threat to society. The CCA offered no au- culpatory and exculpatory. Willis also argues
thority for the proposition that a report with a condition- that the CCA's determination on favorability was un-
al conclusion fails the Brady standard for determining reasonable because it ignores the ongoing nature of the

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 24
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

State's obligations under Brady. The State's obligation ated Willis's due process right. As offered by the State
to produce Brady material continues throughout trial. in its Motion for Summary Judgment, Dr. Wright was
FN146
Willis argues that the Wright report was clearly committed to his opinion that Willis would not pose a
favorable and should have been disclosed because the future danger when he testified during the state hearing
FN150
hypothetical scenarios in the report were conditioned on in 1998. Furthermore, Dr. Wright visited with
the evidence presented at trial and that evidence did not the District Attorney about his examiniation of Willis
FN147
ultimately include other violent behaviors. and said: I didn't think this was a good death penalty
FN151
case. Dr. Wright reiterated his belief that Wil-
FN145. See Sellers v. Estelle, 651 F.2d 1074, lis's case was not a good death penalty case at the state
1077 (5th Cir.1981), cert. denied, 455 U.S. 927 FN152
habeas hearing.
(1982).
FN150. Resp.'s Mot. Summ. J. at 76.
FN146. Jackson v. Johnson, 194 F.3d 641, 649
n. 18 (5th Cir.1999), cert. denied, 529 U.S. FN151. Id. at 77.
1027 (2000), citing United States v. Miranne,
688 F.2d 980 (5th Cir.1982), cert. denied, 459 FN152. Id. (noting that Dr. Wright answered
U.S. 1109 (1983). yes at the state habeas hearing when asked
whether this was not a good death penalty
FN147. See Ex Parte Willis, No. 27, 787-01 case).
Find. of Fact and Conc. of Law at 4; Ex Parte
Willis, No. 27, 787-01 Order at 4 (stating that The State responds that the Wright report was not
the testimony presented during the penalty favorable because it contained negative information
phase was relatively brief with two law en- about Willis's drinking habits and convictions for ob-
forcement officers providing reputation testi- scene phone calls and drunk driving. The report con-
mony.). tained information that Willis admitted to drinking after
age seventeen, that Willis was accused of indecent ex-
*20 Willis also suggests the Wright report was fa- posure at age seventeen and several times later, that
vorable because, even if the report itself were incon- Willis was convicted twice for obscene phone calls, and
clusive, disclosure of the report would have led the de- that Willis was convicted four or five times for driving
fense to Dr. Wright, whose testimony would have been while intoxicated. Willis's convictions for driving while
favorable. In determining whether evidence is material intoxicated and a felony conviction for immoral con-
FN153
under Brady, the effect of the suppression of the evid- duct were already before the jury. Thus, the
ence on the preparation or presentation of the defense only additional negative information contained in the
FN148
case is relevant. The suppression of inadmissible report was the indecent exposure accusations. Consider-
evidence is material if the disclosure of the inadmissible ing that the report led to the highly favorable testimony
evidence might have led defense counsel to admissible of a state-sanctioned medical expert, who determined
FN149
evidence. that Willis was not a future danger, the Court finds the
overall character of the report is favorable, even though
FN148. Bagley, 473 U.S. at 683. it also contained unfavorable information. The jury had
to answer a specific question on future dangerousness to
FN149. Sellers, 651 F.2d at 1077 n. 6; Spence
impose the death penalty, and the report would have fa-
v. Johnson, 80 F.3d 989, 1005 n. 14 (5th
vorably addressed this issue. The Wright report's overall
Cir.1996), cert. denied, 519 U.S. 1012 (1996).
character is favorable.
With these guidelines in mind, the Court finds that
FN153. See Willis, 785 S.W.2d at 387.
Wright's testimony would have been favorable and the
prosecution's failure to disclose the Wright report viol-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 25
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

The CCA also found that, even if the report were the Wright report is contrary to clearly established fed-
favorable, it was not material because no expert testi- eral law, even if the CCA did not exclusively rely on
mony was presented during the penalty phase on the is- that test. In Williams v. Taylor, the Supreme Court held
sue of future dangerousness and because the penalty that, because it was impossible to tell how much the
phase was relatively brief, with two law enforcement state court's use of the wrong standard affected its final
officers providing reputation testimony. Because a chal- determination, the state's determination was contrary to
FN159
lenge to the sufficiency of the evidence on future dan- law.
gerousness was raised and rejected on direct appeal, the
CCA found that in view of the evidence presented at FN159. Williams, 529 U.S. at 414. The State
trial, it is exceedingly difficult to conclude applicant has argued in Williams that even though the Virgin-
demonstrated that there is a reasonable probability the ia Supreme Court relied on the incorrect stand-
jury would have returned a negative answer on the fu- ard, the analysis was not contrary to law be-
ture dangerousness finding if they had been aware of cause the Virginia court had also cited Strick-
FN154 land. Brief of Resp. in Williams v. Taylor, N
Wright's report. The CCA found Dr. Wright's
FN155 98-8384, 1999 WL 642451 at *37-38.
report inconclusive and found that Willis had
made no showing that the verdict is unworthy of con-
FN156 Similarly, the CCA's use of the incorrect legal
fidence.
standard is particularly problematic in this case because
FN154. Ex Parte Willis, No. 27, 787-01 Order the two other factors the CCA used to judge materiality
at 4. were also questionably applied. In holding that the re-
port was not material, the other factors considered by
FN155. Id. the CCA were 1) no expert testimony was presented at
trial on the issue of future dangerousness and 2) the
FN156. Id., citing Kyles, 514 U.S. at 433-35. punishment phase was relatively brief with two law en-
forcement officers providing reputation testimony.
*21 Willis argues that the CCA's conclusion on ma- FN160
The materiality standard depends almost en-
teriality should be rejected because it was contrary to
tirely on the value of the evidence relative to the other
clearly established law. This Court agrees. The CCA's FN161
evidence mustered by the State. Thus, the fact
finding that the Wright report failed to meet the materi-
that the evidence admitted at the penalty phase was lim-
ality standard was erroneous because it took into ac-
ited-devoid of any expert testimony and consisting
count the sufficiency of the evidence, in direct contrast
FN157 solely of two witnesses, two Pecos County law enforce-
to Kyles v. Whitley. There, the Supreme Court
ment officers who provided conclusory and unsubstanti-
explicitly stated that the materiality analysis under
FN158 ated descriptions of Willis's reputation in unspecified
Brady is not a sufficiency of the evidence test.
communities-supports, rather than undermines, a find-
FN157. 514 U.S. at 434-45. ing of materiality.

FN158. Id. See also Williams, 529 U.S. at 414 FN160. Ex Parte Willis, No. 27, 787-01 Order
(O'Connor, J., concurring) (recognizing that the at 4.
Virginia Supreme Court also applied the appro-
FN161. Spence, 80 F.3d at 995. See also
priate Strickland standard); East, 123 F.3d at
United States v. Agurs, 427 U.S. 97, 112
239 (The Supreme Court has warned that the
(1976).
Brady materiality analysis is not a sufficiency
of evidence test.). The State argues that the report was not suppressed
because defense counsel should have obtained it them-
Willis also argues that the CCA's use of the suffi-
selves and did not exercise due diligence in attempting
ciency of the evidence test to reject the materiality of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 26
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

to acquire the report. To establish a Brady violation, a available through due diligence of defense counsel.
petitioner must show that the information allegedly
withheld was not available through due diligence. FN164. Pet.'s Reply at 58, citing Blank Aff.,
FN162 Ex. 8, 9.
In support of its argument on this point, the
State argues facts expressly rejected by the state trial
FN165. Ex Parte Willis, No. 27, 787-01 Find.
court. Under section 2254(e)(1), state court findings of
of Fact and Conc. of Law at 4.
fact are presumed to be correct, and the party rebutting
the presumption of correctness must do so by clear and FN166. Powell v. Texas, 492 U.S. 680, 685
FN163
convincing evidence. The State does not claim (1989); Satterwhite v. Texas, 486 U.S. 249,
the state trial court's factual findings should not be pre- 255-56 (1988).
sumed correct. Moreover, the state trial court's finding
that the report had been suppressed under Brady was FN167. Strickler v. Greene, 527 U.S. 263,
not rejected by the CCA. 283-84, 288 (1993); Banks v. Dretke, 124 S.Ct.
1256, 1273 (2004) (petitioner cannot be faulted
FN162. United States v. Mmahat, 106 F.3d 89, for relying on State's representations).
94 (5th Cir.1997).
FN168. Defense Attorney Woolard testified
FN163. Pondexter, 346 F.3d at 146. See also that DeHart did not receive the report. Dr.
Burden v. Zant, 498 U.S. 433, 436 (1991) (per Wright was not contacted by DeHart. Dr.
curiam) (finding that presumption of correct- Wright did not forward a copy of the report to
ness of state court fact findings applies when DeHart. The testimony eliminates the possibil-
factual determination supports petitioner as ity that the State gave DeHart a copy of the re-
well as when factual determination supports the port because Prosecutor Johnson claims he did
State); Valdez v. Cockrell, 274 F.3d 941, 947 not know the Wright report existed.
(5th Cir.2001).
*22 The Court finds that the Wright report was sup-
Nonetheless, for the following reasons, this Court pressed and was both favorable and material under
finds that the state trial court's findings of fact are sup- clearly established law. Moreover, the disclosure of the
ported by the record. First, prior to trial, defense coun- report would have led defense counsel to Dr. Wright's
sel successfully moved for disclosure of all evidence favorable testimony. That additional benefit to defense
FN164
relevant to mitigation or exoneration of Willis. counsel further supports a finding that the report is both
Second, although defense counsel was aware of psycho- FN169
favorable and material. The Wright report
logical evaluation for the purpose of determining com- presented an opinion by a qualified mental health ex-
petency, counsel was not told and the prosecution did FN170
pert, approved and hired by the State, who be-
not reveal that an assessment of Willis's future danger- lieved Willis was not a good candidate for the death
FN165
ousness had also been conducted. Defense coun- penalty and who would have testified that Willis was
sel must have actual notice that a psychological examin- not a future danger. Considering the lean evidence the
ation will encompass the issue of future dangerousness. State presented at the penalty phase, had the jury been
FN166
Considering that the State was obliged to inform aware of Dr. Wright's conclusions, there is a reasonable
defense counsel of the scope of the evaluation, defense probability that at least one juror would have answered
counsel did not fail to meet the standard of due dili- FN171
no to the question on future dangerousness,
gence by relying on the State's representations regarding and Willis would not have been sentenced to death. Ab-
FN167
the scope of the examination. Furthermore, con- sent Dr. Wright's report and testimony, the Court does
trary to the State's assertion, the record supports the trial not have confidence in the outcome of the penalty
court's finding that Attorney DeHart did not receive the phase.
FN168
Wright report. Thus, the Wright report was not

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 27
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN169. Cf. East, 55 F.3d at 1003 (Prosecution FN173. 466 U.S. 668 (1984).
had a duty to disclose a punishment phase wit-
ness' rap-sheet because if the prosecution had FN174. Id. at 686. See also Nealy v. Cabana,
revealed it, defense counsel would have invest- 764, F.2d 1173, 1177 (5th Cir.1985).
igated the witness' criminal history and eventu-
First, the defendant must show that counsel's perform-
ally uncovered the witness' mental records in
ance was deficient. This requires showing that coun-
the files of the Bexar County Court.).
sel made errors so serious that counsel was not func-
FN170. During a deposition before the state tioning as the counsel guaranteed the defendant by
habeas hearing, the lead trial prosecutor, J.W. the Sixth Amendment. Second, the defendant must
Johnson denied that he had ever met or heard show that the deficient performance prejudiced the
of Dr. Wright at the time of Willis's trial. Evid- defense. This requires showing that counsel's errors
ence produced during the state habeas hearing were so serious as to deprive the defendant of a fair
FN175
showed that Johnson had worked with Dr. trial, a trial whose result is reliable.
Wright on two other cases before Willis's trial.
FN175. Strickland, 466 U.S. at 687.
Johnson could not explain why, if Dr. Wright
was not conducting the examination at the re- Courts are extremely deferential in scrutinizing the
quest of the State, Willis was given Miranda performance of counsel and make every effort to elim-
warnings before the examination. FN176
inate the distorting effects of hindsight. It is
strongly presumed that counsel rendered adequate as-
FN171. See Kirkpatrick v. Whitley, 992 F.2d
sistance and made all significant decisions in the exer-
491, 497 (5th Cir.1993). FN177
cise of reasonable professional judgment. An at-
Because of the numerous errors the CCA made in torney's strategic choices informed by a thorough in-
addressing this claim: applying the sufficiency of the vestigation of relevant facts and law are virtually un-
FN178
evidence test for materiality; erroneously stating that challengeable. Thus, Willis must overcome a
the brief nature of the evidence presented at the penalty strong presumption that the conduct of his trial counsel
phase undermined, rather than supported, a finding of falls within a wide range of reasonable professional as-
FN179
materiality; and failing to consider that disclosure of the sistance.
report would have led to the favorable testimony of Dr.
FN176. See Lockhart v. Fretwell, 506 U.S. 364,
Wright, the CCA's finding that the Wright report was
372 (1993); Burger v. Kemp, 483 U.S. 776, 789
not favorable was contrary to and an unreasonable ap-
FN172 (1987); Strickland, 466 U.S. at 689; Green v.
plication of clearly established federal law.
Johnson, 116 F.3d 1115, 1122 (5th Cir.1997).
FN172. See 28 U.S.C. 2254(d).
FN177. See Strickland, 466 U.S. at 690; Duff-
VI. Ineffective Assistance of Counsel Smith v. Collins, 973 F.2d 1175, 1182 (5th
The constitutional standard for determining whether Cir.1992).
a criminal defendant has been denied the effective as-
FN178. See Boyle v. Johnson, 93 F.3d 180,
sistance of counsel was announced by the Supreme
FN173 187-88 (5th Cir.1996).
Court in Strickland v. Washington. The bench-
mark for judging any claim of ineffectiveness must be FN179. See Strickland, 466 U.S. at 687-91;
whether counsel's conduct so undermined the proper Belyeu v. Scott, 67 F.3d 535, 538 (5th
functioning of the adversarial process that the trial can- Cir.1995).
not be relied on as having produced a just result.
FN174
A two-prong test guides the inquiry: *23 To establish he has sustained prejudice, Willis

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 28
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

must show that there is a reasonable probability that, The CCA also stated that Woolard was surprised Willis
but for counsel's unprofessional errors, the result of the was found guilty, and that Woolard had loaded his
proceeding would have been different. A reasonable guns for the guilt-innocence phase and decided not to
probability is a probability sufficient to undermine con- present mitigation evidence. The CCA mentioned that
FN180
fidence in the outcome. Woolard spoke with a number of Willis's friends and re-
latives and that Investigator Caspari also spoke with
FN180. Strickland, 466 U.S. at 694; Cantu v. friends and relatives. Then the CCA found that Woolard
Collins, 967 F.2d 1006, 1016 (5th Cir.1992). made all significant decisions in the exercise of reason-
FN182
able professional judgment. Thus the CCA held
A. The Texas CCA's Analysis
that Willis did not overcome the presumption that
The state trial court held that Willis was entitled to
Woolard provided effective assistance of counsel.
relief under Strickland. The CCA overruled the trial FN183
court's recommendation of relief on this basis. The CCA
divided the analysis of ineffective assistance for Willis's FN182. Id. at 6.
two trial attorneys: Attorney DeHart and Attorney
Woolard. However, the CCA cited no federal authority FN183. Id. at 5.
requiring a petitioner to show that each attorney's con-
duct separately meets the Strickland standard as op- The CCA's overruling of the trial court was consist-
posed to the defense representation as a whole. Citing ent with the trial court's factual findings. The CCA re-
its own case, the CCA stated that [i]n view of the mul- lied on the record from the post-conviction trial court
tiple counsel representation of applicant, it was incum- but attached a different legal significance to facts found
bent upon applicant to prove deficient performance by by that court. For example, both the CCA and the trial
FN181 court noted that defense counsel spoke with a number of
all counsel. The CCA also stated that the record
did not reflect the two defense attorneys' respective du- friends and relatives of Willis in preparation for the
FN184
ties, responsibilities and division of labor. penalty phase. The CCA also found that facts
that were not relied upon by the trial court, such as de-
FN181. Ex Parte Willis, No. 27, 787-01, Order fense counsel's experience, were legally significant.
at 5 (citing McFarland v. State, 928 S.W.2d Furthermore, the CCA based its decision in part on its
482 (Tex.Crim.App.1995)). legal determination that Willis was required to show
that each defense counsel individually met the standard
For Attorney DeHart, the CCA conducted an over- for ineffectiveness. Because the CCA's resolution of the
view of DeHart's background. The CCA mentioned that claim is not directly contrary to the trial court's factual
Woolard had faith in DeHart's ability, that he had been findings, this Court must, as detailed above, defer to the
licensed for twenty-one years at the time of Willis's tri- state trial court's findings of fact.
al, that he had previously been employed as an Assistant
District Attorney for four years, that he was then the FN184. See id. at 6; Ex Parte Willis, No. 27,
Presiding Judge of the 384th District Court in Alpine, 787-01, Find. of Fact and Conc. of Law at 20.
and that he was considered a seasoned veteran, due to
his criminal law experience. Thus, the CCA held that on *24 Before addressing Willis's specific allegations
the record before it, Willis could not overcome the pre- of ineffectiveness, the Court finds that the CCA violated
sumption that DeHart provided effective assistance of clearly established federal law in holding that Willis
counsel. had to show each attorney's performance, as opposed to
the defense representation as a whole, met the Strick-
For Attorney Woolard, the CCA noted that land standard. Strickland does not require that the ap-
Woolard had been licensed to practice law for four plicable analysis be conducted separately for each attor-
FN185
years, and that Willis's case was his first capital trial. ney. Furthermore, later Supreme Court opinions

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 29
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

applying Strickland, in which the petitioner was repres- psychotic medications. As stated above, the CCA based
ented by more than one attorney at trial, conduct one its overruling of the trial court on defense counsel's leg-
Strickland analysis for the performance of defense al experience and its legal determination that Willis was
FN186
counsel as a whole. There is no support for the required to show that each attorney met the standard for
FN188
CCA's holding that Willis must prevail on separate ana- ineffectiveness.
lyses of deficient performance and prejudice for each
attorney. The CCA's ruling in this regard was therefore FN188. The other factors mentioned by the
FN187 CCA are relevant to defense counsel's perform-
contrary to clearly established law.
ance during the penalty phase.
FN185. Strickland, 466 U.S. at 687.
After the habeas hearing, the state trial court found
FN186. See Williams, 529 U.S. at 370 (alleging that defense counsel recognized a problem with Willis's
trial attorneys had been ineffective during sen- demeanor and suspected the problem could be related to
tencing); Wiggins v. Smith, 539 U.S. 510 medication. Despite counsel's awareness and suspicion,
(2003) (engaging in one Strickland analysis for Judge Jones found defense counsel made no effort or in-
petitioner's two defense attorneys, two public quiry to determine the cause of Willis's appearance or
defenders in the same office). demeanor, even though defense counsel had the right to
access Willis's medical records and it is rudimentary
FN187. Respondent's Motion for Summary FN189
and basic for counsel to gather records. Willis
Judgment states that Willis cannot prevail on now claims this failure to investigate constituted defi-
his ineffective assistance of counsel claim be- cient performance and ineffective assistance of counsel.
cause he did not present any testimony from
Attorney DeHart at the state habeas hearing. FN189. Ex Parte Willis, No. 27, 787-01, Find.
There is no post-Strickland case requiring the of Fact and Conc. of Law at 17.
testimony of both trial counsel as a prerequisite
to an ineffectiveness claim. On the contrary, In response, the State first argues counsel was not
federal law requires that the analysis for an in- unreasonable to believe that Willis's flat affect and lack
effectiveness claim is conducted as to defense of emotion was caused by medications for his back
counsel performance as a whole, not separately pain. The State points to the Pecos County Jail medical
for each attorney. Thus, Respondent's argument log, which reflects Willis took a number of medications
in this regard fails. for back pain. The medical log does not support the
State's argument as to defense counsel's belief because
B. Ineffective Assistance of Counsel At the Guilt- defense counsel did not obtain Willis's Pecos County
FN190
Innocence Phase Jail medical records. Defense counsel could not
First, the Court considers Willis's allegations that have known what medications Willis was taking, for
defense counsel's performance was deficient on various back pain or otherwise. Nor could defense counsel have
grounds during the guilt-innocence phase of trial. The known the effect or potential effect of those medica-
Court then separately considers the issue of prejudice as tions. Therefore, counsel could neither have based an
required by Strickland. understanding of Willis's manner on that information,
nor have made strategic trial decisions based thereon.
1. Failure to Investigate Demeanor & Failure to Discov-
er Unnecessary Medication FN190. Id. at 16-17.
The CCA overruled the trial court without address-
ing Willis's substantive allegation of ineffectiveness *25 The critical failing of counsel with respect to
based upon defense counsel's failure to investigate the Willis's demeanor was the failure to pursue or in any
jail records or discover the unjustified use of anti- manner respond to counsel's admitted concern over Wil-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 30
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

lis's demeanor, whether by gathering Willis's jail medic- Neither the State, Willis, the state trial court, nor
FN191
al records or speaking with an expert. Strickland the CCA articulated any benefit to the defense case
requires that the Court defer to counsel's decisions when from Willis's being medicated with unnecessary anti-
those decisions are both fully informed and strategic, in psychotic drugs. To the contrary, the harm to Willis is
the sense that it is expected, on the basis of sound legal well-documented, as discussed previously. Defense
reasoning, to yield some benefit or avoid some harm to counsel could not have made a decision about the bene-
FN192
the defense. Defense counsel cannot make in- fits or risks of Willis's medication because counsel did
formed or strategic decisions in the absence of a reason- not go to the minimal effort required to investigate Wil-
able investigation and thus Strickland does not require lis's demeanor, that is, to gather Willis's jail medical re-
deference to decisions that are not informed by an ad- cords and discover he was being unnecessarily medic-
equate investigation into the controlling facts and law. ated. In this case, the limits on investigation-the failure
FN193
Interpreting Strickland, the Supreme Court to gather the jail medical records-are not merely unreas-
stressed that a decision based on less than a complete onable. Considering counsel's admitted concern for Wil-
investigation is reasonable only to the extent that the lis's demeanor, the limits on investigation here are bey-
FN194
limits on the investigation were reasonable. ond explanation. Counsel's failure to address or rectify
Willis's demeanor is thus not entitled to a presumption
FN191. Cf., Roberts v. Dretke, 356 F.3d 632, of reasonableness because it was neither informed by a
639 (5th Cir.2004). Where, as here, counsel is reasonable investigation nor supported by any logical
aware of the client's history of mental prob- position that such failure would benefit Willis's defense,
lems, the reasonableness of a decision made by and thus cannot possibly be construed as strategic.
counsel not to investigate that history is sus- FN195
pect. Id.
FN195. See Moore, 194 F.3d at 616.
FN192. Moore v. Johnson, 194 F.3d 586, 615
(5th Cir.1999). The Court finds that defense counsel's failure to in-
vestigate Willis's demeanor was deficient performance
FN193. Id. See also Andrews v. Collins, 21 under Strickland. Counsel's failure to investigate Wil-
F.3d 612, 623 (5th Cir.1994) (counsel's stra- lis's demeanor was objectively unreasonable because: 1)
tegic decision entitled to deference because counsel was concerned with Willis's demeanor; 2) coun-
supported by an adequate investigation which sel could have addressed that concern by obtaining Wil-
included contact with at least twenty-seven lis's jail medical records but did not do so, even in light
people); Drew v. Collins, 964 F.2d 411, 423 the standard that gathering medical records is a basic
(5th Cir.1992) (counsel's strategic decision en- part of defense counsel's duties in a capital case; and 3)
titled to deference because counsel made no strategic decision supported the failure to gather the
reasonable inquiries into defendant's mental medical records.
state); Bouchillon v. Collins, 907 F.2d 589, 597
(5th Cir.1990) (Tactical decisions must be The Court also finds that the CCA's rejection of this
made in the context of a reasonable amount of claim was an unreasonable application of Strickland.
FN196
investigation, not a vacuum.); Wiggins, 539 In addition to errors made by the CCA already
U.S. at 533 ( strategic choices made after less discussed, the CCA's determination that counsel made
than complete investigation are reasonable all significant decisions in the exercise of reasonable
only to the extent that reasonable professional professional judgment is unreasonable. The CCA did
judgments support the limitations on investiga- not assess whether the failure to gather the jail medical
tion. ) (citation omitted). records actually demonstrated reasonable professional
FN197
judgment. Courts may not defer to decisions by
FN194. Wiggins, 539 U.S. at 533. counsel that are not strategic or are not informed by a

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 31
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

reasonable investigation or reasonable limits on invest- And he showed no mercy or remorse afterwards.
FN198 FN203
igation. The CCA's assumption that the failure to
investigate was adequate was thus an unreasonable ap-
FN199 FN200. Vol. 28 at 83, ll. 1-3.
plication of clearly established federal law.

FN196. Strickland is clearly established federal FN201. Vol. 28 at 83, ll. 8-12.
law within the meaning of 28 U.S.C. 2254.
FN202. Vol. 28 at 65, ll. 14-16.
See Wiggins, 539 U.S. at 522 (referring to the
clearly established precedent of Strickland. FN203. Vol. 28 at 82, ll. 4-24.
); Dowthitt, 230 F.3d at 743 (the merits of an
ineffective assistance of counsel claim are gov- Before addressing the substance of Willis's argu-
erned by the well-established rule of Strickland ments relative to these remarks, the Court finds two un-
v. Washington. ). worthy of review. Willis challenged the third remark on
direct appeal. The CCA found the third remark was not
FN197. See Wiggins, 539 U.S. at 527. a comment on Willis's demeanor but juxtaposed Willis's
presence at trial with the absence of the deceased vic-
FN198. See Strickland, 466 U.S. at 690-91; FN204
tim. The Court likewise finds that this prosec-
Wiggins, 539 U.S. at 528; Moore, 194 F.3d at
utorial remark was not a comment on Willis's trial de-
615.
meanor, and therefore, should not be included in this
FN199. See Wiggins, 539 U.S. at 528. analysis.

2. Failure to Object to Prosecution's Use of Willis's De- FN204. See Vol. 28 at 64, ll. 13-21 (My cli-
meanor at Guilt-Innocence Phase ents aren't in the courtroom today. They are
*26 Willis also contends trial counsel violated his dead. Understand the distinction....).
right to effective assistance of counsel by failing to ob-
Next, the State argues Willis is barred from
ject to the prosecutor's reference to his trial demeanor
presenting the fourth remark because he did not cite the
during closing arguments. Willis raises four statements
remark during the state habeas process. Although the
by the prosecution as the basis for his claim: 1) refer-
Court will not consider the fourth remark for reasons
ence to Willis's dead pan, insensitive, expressionless
FN200 explained below, the remark is not barred, under the
face; 2) description of Willis's cold fish eyes
Texas abuse-of-writ doctrine, as the State argues. The
on everybody and everything that has come in here, and
State relies upon two cases, both of which are properly
he just merely stared and watched very impassively,
distinguished from the instant case, to support its argu-
very cold heartedly, much like he probably did that
ment.
morning outside the fire when he watched and listened;
FN201
3) commenting that [t]his guy has been able to In Anderson v. Harless, the Supreme Court held
sit in here and observe everyone that took the stand, that a claim was not exhausted when it was raised as a
FN202
look at all of you throughout this proceeding; state law issue to the state courts, and thus the corres-
and 4) stating that [y]ou know, it's hard for us to even ponding federal constitutional claim had not been
imagine the perverted thoughts and the fascination this FN205
presented to the state courts. Willis's case is dis-
Defendant must have had standing out there ... ob- tinguished from Anderson because Willis presents a
serving and knowing what was going on inside ... What federal claim relying on federal law. Therefore, the
kind of thoughts go through somebody's mind like that? Court will not eschew consideration of the fourth re-
You know, what he was thinking when he is watching mark based upon Anderson. In Nobles v. Johnson, the
this satanic deed that he did? People burning up in there petitioner presented in the state courts a Sixth Amend-
... That's what he was doing, listening and watching ... ment claim that he had been denied the effective assist-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 32
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN206
ance of a competent court-appointed psychiatrist. presentation of two additional expert psycholo-
In federal court, the petitioner raised a claim of ineffect- gical reports that were not presented to the
ive assistance of counsel based on failure to present mit- state courts).
FN207
igating evidence. Nobles argued the gist of the
claims was the same and he should therefore be able to *27 Willis exhausted his claim with regard to the
present the federal court with the re-postured claim. fourth remark because its addition does not materially
FN208 alter the legal claim presented to the state court, but the
The Court rejected Nobles's argument, and held
that when the two claims required wholly different in- addition of the fourth remark does not place Willis's
quiries, the petitioner had not provided the state court federal claim in a stronger evidentiary posture. It is a
with the requisite fair opportunity to apply controlling less dramatic example of prosecutorial comment on
legal principles to the facts bearing upon his constitu- non-testimonial demeanor than either the first or second
FN209 remarks. Consequently, the Court finds that the fourth
tional claim. However, such is not the case for
Willis's claim. Here, the state court was given the op- remark is not material and does not make Willis's claim
portunity to consider precisely the same legal claim significantly stronger or different.
with the same facts. In Willis's case, the difference in
Because the fourth remark does not add to the
the federal petition is the addition of supplemental fac-
FN210 claim, the Court will not consider the remark in determ-
tual examples of prosecutorial comments. Includ-
ining the merits of Willis's claim. The merits of the
ing new facts in a federal habeas petition does not
claim will therefore be determined on the basis of the
render the federal claim based upon those facts unex-
first and second remarks only.
hausted unless the facts materially alter the legal claim
FN211
presented to the state courts. The facts must be To begin, Willis must demonstrate that counsel's
material and must put the claim in a significantly differ- performance fell below an objective standard of reason-
ent and stronger evidentiary posture than it was when FN213
FN212 ableness. Willis argues that under Texas or feder-
presented to the state courts. al law, the prosecutor's remarks constituted error, and
thus, a reasonable defense attorney would have objec-
FN205. Anderson v. Harless, 459 U.S. 4, 6
ted. Under state law, Willis argues that the CCA found
(1982).
error when the prosecution commented on the defend-
FN206. Nobles v. Johnson, 127 F.3d 409 (5th ant's non-testimonial demeanor by describing the de-
Cir.1997). fendant as cold, unnerved, uncaring ... [and] unsym-
FN214
pathetic. Willis argues that defense counsel's
FN207. Id. at 420. failure to object was objectively unreasonable because,
under this precedent, the trial court would have commit-
FN208. Id. ted reversible error by refusing to sustain an objection.
FN215
FN209. Id. (internal citations omitted).
FN213. See Strickland, 466 U.S. at 687.
FN210. The additional facts are not new facts
in the sense that the examples were part of the FN214. Good v. State, 723 S.W.2d 734, 736
trial record that was presented to the trial court (Tex.Crim.App.1986).
during the post-conviction hearing.
FN215. See Vaughn v. State, 931 S.W.2d 564,
FN211. Vasquez v. Hillery, 474 U.S. 254, 260 567 (Tex.Crim.App.1996).
(1986).
The State responds that prosecutorial comment on a
FN212. Dowthitt, 230 F.3d at 745-46 (finding a defendant's non-testimonial demeanor is not error ac-
petitioner's claim exhausted despite the FN216
cording to the Supreme Court . The State con-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 33
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

fuses the legal standard for reviewing a state court's de- objectively reasonable attorney would have objected to
termination of a claim under 28 U.S.C. 2254(d), the prosecutorial comments as improper under state law.
which requires a showing that the state court unreason- Moreover, because of the CCA's determination on direct
ably applied clearly established federal law, with the appeal, a determination that defense counsel's failure to
FN217
standard for ineffective assistance of counsel. object was sufficient performance would have been un-
The proper inquiry is whether a reasonably effective at- reasonable under Strickland, had the CCA applied fed-
torney would have objected to the prosecutor's state- eral law to this particular allegation of ineffectiveness.
ments, not whether the prosecutorial statements them- Because a reasonable attorney would have objected to
selves violated clearly established federal law. the comments as improper under state law, it is not ne-
cessary for the Court to decide whether a reasonable at-
FN216. See Bishop v. Wainwright, 511 F.2d torney would have objected under federal law. The
664, 667 (5th Cir.1975) (prosecutor's com- Court holds that defense counsel performed deficiently
ments about defendant's courtroom demeanor under the first prong of Strickland.
raise no habeas corpus issue).
FN220. See Morlett v. Lynaugh, 851 F.2d
FN217. See Strickland, 466 U.S. at 668. 1521, 1525 (5th Cir.1988), cert. denied, 489
U.S. 1086 (1989).
On Willis's direct criminal appeal, the CCA held
that the comments were improper under state law. FN221. Willis, 785 S.W.2d at 386 n. 8.
FN218
On habeas review, the state trial court found that
the prosecution commented on Willis's non-testimonial 3. Prejudice at the Guilt-Innocence Phase
demeanor, that the prosecution urged jurors to infer lack *28 The Court now considers whether Willis was
of remorse from the non-testimonial demeanor and that prejudiced by his trial counsel's deficient performance
FN219
defense counsel failed to object. Willis argues during the guilt-innocence phase. The Court views to-
defense counsel's performance was deficient under the gether all instance of deficient performance by defense
first prong of Strickland because a reasonable attorney counsel during the guilt-innocence phase to determine
FN222
would have objected to the comments as improper 1) whether Willis was prejudiced. To establish pre-
under state law, given the CCA's determination on dir- judice, Willis must show a reasonable probability exists
ect appeal that the prosecutor's comments violated state that, but for counsel's unprofessional errors, the result
FN223
law, and 2) under federal law, as a violation of Willis's of the proceeding would have been different.
fundamental right against self-incrimination protected
by the Fifth Amendment. FN222. See Williams, 529 U.S. at 399, 416
(holding that the state trial court was correct in
FN218. Willis, 785 S.W.2d at 386 n. 8. determining prejudice based on the entire
post-conviction record, viewed as a whole and
FN219. Ex Parte Willis, No. 27, 787-01 Find. cumulative of mitigation evidence presented
of Fact and Conc. of Law at 17. originally, and faulting the Virginia Supreme
Court for its piecemeal approach to the inef-
To the extent that the State argues that the failure to
fectiveness claim.); Moore, 194 F.3d at 619
object was not deficient performance because the objec-
FN220 (considering the cumulative errors of counsel
tion would have been futile or without merit, the
and finding prejudice).
Court disagrees. The objection would have been neither
futile nor meritless. To the contrary, the CCA determ- FN223. See Kimmelman v. Morrison, 477 U.S.
ined on direct appeal that the prosecutor's comments vi- 365, 375 (1986); Darden v. Wainwright, 477
FN221
olated state law, and therefore defense counsel's U.S. 168, 184 (1986); United States v. Conley,
objection would have been objectively reasonable. An 349 F.3d 837, 841-42 (5th Cir.2003); Williams

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 34
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

v. Collins, 16 F.3d 626, 631 (5th Cir.1994); and formance of counsel in failing to investigate Willis's de-
United States v. Bounds, 943 F.2d 541, 544 meanor or determine the medication that cause the de-
(5th Cir.1991). meanor.

Had defense counsel conducted a reasonable invest- The State also argues that Willis cannot prevail on
igation into Willis's demeanor, or at the least gathered his ineffective assistance claim grounded on counsel's
his jail medical records, counsel would have learned failure to investigate Willis's demeanor and failure to
that Willis was being medicated, absent medical need, detect the antipsychotic medications because he has not
with inappropriately high doses of antipsychotic drugs. shown that had counsel investigated Willis's demeanor,
And, as stated in the section addressing Willis's invol- counsel would have found an expert available to testify
untary medication claim, Willis was severely prejudiced at that time regarding the alleged impropriety of anti-
by the administration of the unnecessary antipsychotic psychotic medications. Testimony presented at Willis's
medications. The Supreme Court has recognized the post-conviction hearing demonstrated that, based on
harm that can arise from a defendant being medicated 1987 standards, the medication given to Willis was
FN224
with antipsychotic drugs during trial. medically inappropriate, and Judge Jones found as
FN225
much in fact. The Court finds that a reasonably
FN224. See Riggins, 504 U.S. at 142 (Kennedy, qualified expert in 1987 would have testified to such
J., concurring). It is a fundamental assumption and reasonably effective defense counsel would have
of the adversary system that the trier of fact ob- obtained one.
serves the accused throughout the trial, while
the accused is either on the stand or sitting at FN225. Ex Parte Willis, No. 27, 787-01 Find.
the defense table.... At all stages of the pro- of Fact and Conc. of Law at 16-17; Lipman
ceedings, the defendant's behavior, manner, fa- Dep. at 33, ll. 11-17; 52, ll. 3-53; 37, ll. 21-38,
cial expressions, and emotional responses, or ll. 14-54; Tr. at 252, ll. 20-24; Tr. at 268, ll.
their absence, combine to make an overall im- 1-5.
pression on the trier of fact, an impression that
can have a powerful influence on the outcome Therefore, the Court finds that Willis was preju-
of the trial.... The side effects of antipsychotic diced by defense counsel's failure to investigate his de-
drugs may alter demeanor in a way that will meanor. The CCA's determination that Willis was not
prejudice all facets of the defense.... As any tri- prejudiced is objectively unreasonable considering the
al attorney will attest, serious prejudice could clarity of the Supreme Court's jurisprudence on the po-
result if medication inhibits the defendant's ca- tential harm of medicating criminal defendants with an-
FN226
pacity to react and respond to the proceedings tipsychotic drugs, as well as the evidence in the
FN227
and to demonstrate remorse or compassion.); record regarding the harm to Willis. The defi-
Coy, 487 U.S. at 1016-20 (emphasizing the im- ciencies in counsel's performance during the guilt-
portance of the face-to-face encounter between innocence phase rendered the proceeding fundamentally
FN228
the accused and the accuser). unfair and the result of the proceeding unreliable.
Willis received ineffective assistance of counsel during
In addition, here the State used Willis's demeanor the guilt-innocence phase because Willis's trial counsel
and flat affect as an argument in support of his guilt. were deficient-by failing to investigate his demeanor
The state trial court found that the State referred to Wil- and by failing to object to the prosecution's reference to
lis's demeanor during trial as evidence of guilt and fu- his demeanor to establish guilt and future dangerous-
ture dangerousness and that the State urged jurors to in- ness-and because Willis was prejudiced by these defi-
fer a lack of remorse based on Willis's demeanor. These ciencies.
factual findings, to which this Court must defer, further
support that Willis was prejudiced by the deficient per- FN226. See Riggins, 504 U.S. at 127; Harper,

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 35
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

494 U.S. at 210; Sell, 539 U.S. at 176-77. now. You are aware of that case out in San Diego
where that old boy went to a McDonald's and killed
FN227. The CCA found that Willis did not 16 people in about 30 minutes.
demonstrate deficient performance of counsel,
and thus, the CCA did not substantively ana- A: Right.
lyze the prejudice requirement of Strickland
beyond simply stating that Willis had failed to Q: Did they ever develop a motive for that man going
show prejudice. See Ex Parte Willis, No. 27, berserk?
787-01, Order at 5.
A: No. I don't believe?
FN228. See Soffar v. Dretke, 368 F.3d 441, 471
Q: Okay. There can be a lot of speculation.
(5th Cir.2004), citing Lockhart, 506 U.S. at 372
. A: Right.
C. Ineffective Assistance at the Sentencing Phase Q: But unless that person tells you, you don't know.
*29 The Court turns now to Willis's claims of inef-
fective assistance of counsel at the sentencing phase. A: That's right.

1. Failure to Investigate and Discover the Wright Report Q: And that's what I need to know from you. Are you
Willis argues counsel was ineffective for failing to going to require yourself to know why they did
investigate and discover the report of Dr. Wright, the something?
psychologist who examined Willis before trial at the re-
quest of the prosecution. As detailed above, the Wright A: No. I don't believe so. As long as they did it, I be-
report indicated that Willis was not a future danger. For lieve I would go ahead and vote for it.
the reasons outlined in the following section addressing
Q: We get back to the premise that actions speak
claims of prosecutorial suppression, the Court holds that
louder than words.
the prosecution suppressed the Wright report. And
therefore, defense counsel's performance was not defi- A: Right.
cient, nor counsel ineffective, for failing to investigate
that which the State bore a duty to disclose and that Q: Okay. Because these-you have been reading about
which was hidden from the defense. these pit bull attacks?

2. Failure to Object to the State's Descriptions of Willis A: Right.

as an Animal
Willis argues that counsel's failure to object to pro- Q: You know, we don't need-you can't talk to the dog
secutorial comments characterizing Willis as an animal and find out why it wanted to eat the little four year
constituted ineffective assistance of counsel. The state old baby, can you?
trial court found that the prosecution characterized Wil-
A: Right.
lis as a pit bull, and animal, and a rat, during voir
dire, closing arguments and at the penalty phase. During Q: You know it's a mean, vicious dog, and it's capable
voir dire the following exchange took place between of hurting, crippling, and killing people?
FN229
Prosecutor Johnson and one juror. Defense coun-
sel did not object. A: Right, sir.

FN229. Vol. 5 at 15, ll. 4, 13-16. Q: And once it shows it has that propensity to do that
to a human being, you want to find out why the dog
Q: Okay. Well, let me give you a hypothetical here

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 36
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

went off its rocker and started doing that or you take Q: That's when we go by the actions rather than you
action? are going to explain it or say about it or whatever the
words may be.
A: I think I would take action on that.
A: Uh-huh.
Q: Okay. I think most of us will, but I want to make
sure that you understand that the motive of this De- Q: Okay. That's all we are coming in here and doing
fendant in doing this act and premeditation are not is showing you this Defendant's actions on June 11,
elements that the State is required to prove in this 1986, that resulted in the death of this woman. That's
courtroom to gain a guilty conviction and to gain a going to be all right?
death sentence.
A: Okay?
A: Right, sir.
Q: Okay. Because we can't get into his mind.
*30 Q: Okay?
A: Right.
A: Okay.
Q: And, of course, he doesn't have to take the stand
Prosecutor Johnson had the following exchange either and tell you why he did it because he has a
FN230
with another juror. Defense counsel did not ob- right to remain silent. Can you go along with that?
ject.
A: Yeah.
FN230. Vol. 4 at 76, ll. 13-77, 15.
Prosecutor Johnson also questioned another juror as
FN231
Q: Okay. But when it comes to proof, now, his motive follows. Defense counsel objected to this state-
isn't one of them. That's not going to bother you? ment.

A: I don't think so, if I have enough, like I said, FN231. Vol. 11 at 64, ll. 13-24.
enough proof to know that he did it.
Q: ... You have two children, eight and twelve. If they
Q: Okay. Because there are lots of times people do were playing out in the front yard and some person
things and they don't tell you why they did it. Even you had never seen before was walking a pit bull dog
though you want to know, they ain't going to tell you and that pit bull dog breaks his leash and attacks your
why they did it. eight your [sic] old and gets him down, hurts him real
bad, you come running out of the house here and
A: Yeah, I understand that. I'm that way to some- hearing all the commotion, you are not going to stop
times. I do things. and find out the reasons why that dog is attacking
your child, are you?
Q: But when that happens-and we don't know why it
happened, and they won't tell us, or it is an animal A: Well, no.
and it hurt somebody, and it can't tell us either.
Q: You are just going to react.
A: Right.
A: Right.
Q: But when that happens and we don't know what
the motive was, we just say the actions of that person Q: You are going to take care of that dog.
or animal speak loud and clear, don't they?
Finally, the State made the following statement dur-
A: Right. ing closing argument of the guilt-innocence phase:

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 37
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

[L]adies and gentlemen, this is an animal sitting right and our country, which many of us go to war
down here at the end of the table, just like one of for and defend for something like this to
them pit bull dogs in the back of the Robinson's [sic] come in here and have his due process. Vol.
yard. They attack and destroy stuff and you don't 29 at 43, ll. 11-20.
know why. You can't get in their mind....You don't
need to know the motive. Actions speak loud enough. [H]e wanted his due process. He wanted his
FN232 trial by 12 people. That's the type they are.
This is an animal.
They will be the judge and the jury and the
executioner but when it comes to their turn,
FN232. Vol. 28 at 70, ll. 3-10. no, no, no. They want to run behind the Con-
stitution, and then they want to run behind
The statement during closing argument was objec-
their rights, which they don't give to no one
ted to and thus was not an instance of deficient perform-
FN233 [sic] else. Vol. 29 at 46, ll. 18-23.
ance on the part of trial counsel.
Out here in West Texas, I have always
FN233. This prosecutorial comment was not
taken great pride in the fact that we are pretty
raised as a point of error on direct appeal. Wil-
hard people.... And just two generations ago,
lis does not argue that direct appeal counsel
ladies and gentlemen, our grandparents lived
was ineffective for failing to raise it.
out here under the laws of Judge Roy Bean,
In a footnote, Willis raises additional comments by who was a very famous jurist, and the law
the prosecutor, to which defense counsel did not object, was swift and certain back in those days.
that are also part of Willis's claim of ineffective assist- Vol. 29 at 39, ll. 8-14.
FN234
ance of counsel. The comments fall into three
I'm sorry this proceeding has taken this
categories: comments about Willis's exercise of his due
FN235 FN236 long, ladies and gentlemen, but, once again,
process rights, inflammatory arguments,
it's due process. Vol. 29 at 48, ll. 12-13.
and arguments justifying the death penalty based on its
FN237
deterrent effect. None of these specific comments FN236. The prosecution referred to Willis as: a
were raised in the state courts. The State argues the satanic demon, (Vol. 29 at 41, ll. 13-19); a
statements are therefore not exhausted. Because this monster from a horror film, (Vol. 29 at 44, ll.
Court finds that Willis's claim is rejected on the merits, 11-14); a thing, (Vol. 29 at 47, ll. 12-13);
it is unnecessary for the Court to decide whether the ad- and, the most cowardly, most despicable thing
ditional remarks are exhausted. that exists in our society, (Vol. 29 at 45, ll.
19-22).
FN234. See Pet. at 112, n. 43.
The prosecution also made the following
FN235. For example, the prosecutor stated:
comments:
If it was what was fair and what was right, I
I'm here to tell you ... when they snap, they
submit to you back in the old days, our
snap, and they are not human beings any-
grandparents might have taken him out there
more. They have no utility to us. None. What
and put him in the house, boarded it up, and
he did was a cold, calculating, heartless act
set it on fire. That would have been justice.
with methodical premeditated deliberation
That would have been an eye for an eye, but
when you are doing something on the floor.
today in our civilized society, even out here
Vol. 29 at 44, ll. 15-18.
in West Texas where we are hard people, we
have to live by the laws of our Constitution [I]t's hard for you to recognize those qualit-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 38
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN247
ies that exist in a person that turns them into to present mitigating evidence.
something other than a human being, but
they have no compassion, no forgiveness in FN238. The State argues that these comments
their hearts. Vol. 29 at 40, ll. 1-5. cannot form the basis of a claim of ineffective-
ness at the penalty phase because they were
And forevermore, once a person reaches made during voir dire or at closing arguments
that snapping point in their brain where they for the guilt-innocence phase. However, under
don't have the ability to discipline themselves Texas law, capital jury sentencing deliberations
from doing violent acts like this, they include evidence and arguments presented dur-
forever, then, have the capability of hurting ing both the guilt-innocence and penalty
and killing us forever, because once you pass phases. See Banda v. State, 890 S.W.2d 42, 51
that line, you have committed your soul to (Tex.Crim.App.1994).
the Devil. Vol. 29 at 41, ll. 13-19.
FN239. Vol. 11 at 68, ll. 18-21.
FN237. ... I want you to consider the deterrent
effect when you come back with your answer FN240. Vol. 28 at 70, ll. 3-10.
to these special issues, because there are people
FN241. Vol. 29 at 41, ll. 13-19.
out here who have no compassion for their fel-
low man, who are cold-hearted, bloody FN242. Vol. 29 at 44, ll. 11-14.
killers....Let him and all other people that are
like him that exist out here in our communities FN243. Vol. 29 at 47, ll. 12-13.
or around us or want them to be transients that
come into our communities know that we be- FN244. Vol. 29 at 41, ll. 13-19.
lieve in social vengeance.... We want them
FN245. 438 U.S. 586, 604 (1978).
answered Yes.... And anyone else like him
that wants to come out here.... I want them to FN246. 455 U.S. 104, 113-14 (1982).
know that our juries out here will give it to
them. Vol. 29 at 39, ll. 16, 20-47. FN247. See id. at 113-14; Lockett, 438 U.S. at
604.
*31 As to the merits of the remark, the State argues
that the remarks were not improper and thus defense Comments, such as those made by the prosecutor
counsel was not deficient for failing to object to them. here, do not violate Eddings or Lockett. While the Court
FN238
The State claims that the prosecution simply finds the comments beyond poor taste and shameful, the
used animal imagery to ascertain whether any of the Court must only decide whether the CCA's determina-
prospective jurors would hold the State to proving tion that the failure to object was not deficient perform-
motive. Willis argues that the animal imagery was used ance is an unreasonable application of Strickland .
to dehumanize him. Willis points to comments FN248
Willis has not cited, nor has the Court found on
FN239
throughout trial describing Willis as a rat, and independent review, persuasive authority that the com-
FN240 FN241
animal, a satanic demon, a monster ments would have been error had defense counsel ob-
FN242 FN243
from a horror film, a thing, and jected. It does not follow that, because the comments
someone who had committed his soul to the devil. are distasteful and shameful, the CCA's determination
FN244
Willis argued defense counsel should have ob- that counsel was not deficient is unreasonable applica-
FN245
jected under and Lockett v. Ohio, and Eddings v. tion of federal law. Our present rules are thus. Hence, as
FN246
Oklahoma. Both cases discuss the fundamental to this particular claim of ineffectiveness, the Court
respect for humanity underlying the Eighth Amend- cannot say that defense counsel's performance was defi-
ment, and both cases concern the right of the defendant cient. The Court need not reach the issue, then, of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 39
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

whether Willis was prejudiced by his counsel's failure ceived as inconsistent with the CCA's opinion
to object to the State's descriptions of him as an animal. is the trial court's determination that defense
counsel did not prepare for the penalty phase.
FN248. See 28 U.S.C. 2254(d). This could be construed as inconsistent with
the CCA's statement that defense counsel
3. Failure to Cross Examine and Present Mitigating
Woolard and Investigator Caspari interviewed
Evidence
friends and relatives. However, the trial court
Willis argues that defense counsel was ineffective
also made a finding that defense counsel spoke
for failing to cross-examine the State's witnesses who
with four or five people who knew Willis.
provided testimony on aggravating factors and that de-
Thus, the trial court determined that, despite in-
fense counsel was ineffective for failing to present mit-
terviewing some people, defense counsel was
igating evidence. As stated above, the CCA addressed
nonetheless unprepared for the penalty phase,
the claim of ineffectiveness as a whole and did not ad-
and the CCA determined that the interviews
dress the specific claim of ineffectiveness at the penalty
conducted by defense counsel were sufficient
phase of the trial, but a portion of the CCA's analysis
to prevent a finding of deficient performance.
refers to the penalty phase. The CCA stated that defense
Thus, the CCA's opinion is not inconsistent
counsel was surprised Willis was found guilty and that
with the trial court's findings, but in fact relies
defense attorney Woolard had loaded his guns for the
upon them.
guilt-innocence phase. The CCA mentioned that
Woolard spoke with a number of Willis's friends and re- FN251. See Craker, 756 F.2d at 1213-14; West-
latives and that Investigator Caspari also spoke with ley, 83 F.3d at 721 n. 2.
friends and relatives of Willis. The CCA stated that de-
fense counsel decided not to present mitigation evid- As to Willis's claim that defense counsel was inef-
ence. The CCA held that Willis did not overcome the fective for failing to cross-examine the State's wit-
presumption that defense counsel provided effective as- nesses, the Court agrees with the State. To the extent
FN249
sistance of counsel. Also, the CCA divided the Willis argues defense counsel should have challenged
analysis of ineffective assistance for Willis's two trial the State's witnesses, Willis does not specify what evid-
attorneys which, as explained above, is contrary to ence a cross-examination would have uncovered. Thus,
clearly established law. Willis has not shown defense counsel was deficient in
FN252
this regard.
FN249. Ex Parte Willis, No. 27, 787-01, Order
at 5. FN252. See United States v. Green, 882 F.2d
999, 1003 (5th Cir.1989).
*32 The CCA's overruling of the trial court was not
FN250
inconsistent with the trial court's factual findings. As to the argument that defense counsel was inef-
The CCA based its decision on its determination that fective for failing to present mitigating evidence, the
defense counsel was reasonable to focus on the guilt- Court finds counsel's performance was deficient.
innocence phase and that defense counsel's mitigation Mitigating evidence concerning a particular defend-
investigation was reasonable, as was the decision to not ant's character or background plays a constitutionally
present mitigating evidence. The CCA held that the re- important role in producing an individualized senten-
cord before it did not meet the standard for deficient cing determination that the death penalty is appropriate
FN253
performance. Because the CCA's decision was not in- in a given case. Defense counsel did not
consistent with the trial court's findings, this Court must present any mitigating evidence during the punishment
FN251
defer to the state trial court's findings of fact. phase of the trial.

FN250. The factual finding that could be per- FN253. Moore, 194 F.3d at 612. See also

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 40
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

Woodson v. North Carolina, 428 U.S. 280 decision was reasonable); Wilson v. Butler, 813
(1976); Eddings, 455 U.S. 104. F.2d 664, 672 (5th Cir.1987) (remanding for
evidentiary hearing because record did not re-
In Moore v. Johnson, defense counsel failed to flect whether counsel made a sound strategic
present any mitigating evidence because defense coun- decision not to present mitigating evidence of
sel felt that mitigating evidence was contrary to an alibi troubled background and mental impairment);
defense and that the case was a guilt-innocence case, Lyons v. McCotter, 770 F.2d 529, 534-35 (5th
FN254
rather than a punishment case. The Fifth Cir- Cir.1985) (finding deficient performance be-
cuit held that while counsel's failure to develop or cause there was no sound strategic basis for
present mitigating background evidence is not per se de- counsel's failure to object to evidence of prior
ficient performance ... Strickland does not require defer- offenses); Mattheson v. King, 751 F.2d 1432,
ence to those decisions of counsel that, viewed in light 1439-40 (5th Cir.1985) (explaining strategic
of the facts known at the time of the purported decision, purpose motivating counsel's decision to ex-
FN255
do not serve any conceivable strategic purpose. clude evidence of mental impairment from sen-
The Fifth Circuit declined to defer to counsel's decision tencing phase); Moore v. Maggio, 740 F.2d
not to present mitigating evidence because the decision 308, 315-19 (5th Cir.1984) (explaining basis of
was neither informed by a reasonable investigation nor counsel's considered decision to limit investig-
supported by any logical position that such failure ation by excluding implausible lines of mitigat-
FN256
would benefit [the] defense. Given that coun- ing evidence).
sel's failure to investigate was not supported by reason-
ably professional limits upon investigation, the Court FN256. Moore, 194 F.3d at 616.
finds that there is no decision entitled to a presumption
FN257 FN257. Id. at 617. See also Wiggins, 539 U.S.
of reasonableness under Strickland.
at 522 ([O]ur principal concern in deciding
FN254. Moore, 194 F.3d at 614. whether [defense counsel] exercised
reasonable professional judgment, is not
FN255. Id. at 615. See Strickland, 466 U.S. at whether counsel should have presented a mitig-
681 (Counsel may not exclude certain lines of ation case. Rather, we focus on whether the in-
defense for other than strategic reasons.); vestigation supporting counsel's decision not to
Boyle, 93 F.3d 180 (explaining basis for coun- introduce mitigating evidence of [defendant's]
sel's strategic decision not to offer mitigating background was itself reasonable. (internal
evidence identified by the defendant); Loyd v. citations omitted)).
Whitley, 977 F.2d 149, 158 (5th Cir.1992)
(Whether counsel's omission served a stra- As in Moore, defense counsel's decision in this case
tegic purpose is a pivotal point in Strickland not to present any mitigating evidence was not motiv-
and its progeny. The crucial distinction ated or justified by any strategic or tactical rationale.
FN258
between strategic judgment calls and just plain Counsel's decision was instead borne out of poor
omissions has echoed in the judgments of this planning and false hopes for the guilt-innocence phase
court.) (footnote omitted); Profitt v. Waldron, of the trial. There was simply no thorough investiga-
831 F.2d 1245, 1249 (5th Cir.1987) (no re- tion of the law and facts relevant to all plausible lines of
FN259
quired deference to decisions that do not yield defense, necessary to make a strategic or tac-
any conceivable benefit to the defense); Bell v. tical decision not to present mitigating evidence.
FN260
Lynaugh, 828 F.2d 1085, 1090 (5th Cir.1987) Here, as in Moore, counsel was unprepared and
(stating that when counsel makes an informed did not expect to proceed to the punishment phase of
and considered decision not to present mitigat- Willis's trial immediately after the guilty verdict was re-
FN261
ing evidence, the issue becomes whether the turned. Also, counsel agreed to proceed rather

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 41
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

than request a continuance, as was the case in Moore. helped and could not have harmed the case. Thus, the
FN262
decision to forego mitigation could not be expected to
yield some benefit or avoid some harm to the defense.
FN258. See Moore, 194 F.3d at 615; Whitley, FN264
977 F.2d at 158-59, nn. 21-22; Profitt, 831
F.2d at 1249; Lyons, 770 F.2d at 534-35 ( FN263. See id. at 617. See also Darden, 477
Strickland does not require deference when U.S. 168 (counsel's failure to present mitigat-
there is no conceivable strategic purpose that ing evidence relating to defendant's character,
would explain counsel's conduct). psychiatric evaluation and history as a family
man did not constitute deficient performance
FN259. Moore, 194 F.3d at 615. where such evidence would have opened the
door to otherwise excluded evidence that de-
FN260. Id. See also McCoy v. Lynaugh, 874
fendant had prior criminal convictions, was
F.2d 954, 964 (5th Cir.1989) (counsel's de-
diagnosed as a sociopathic personality, and had
cision not to present mitigating evidence is en-
in fact abandoned his family); Mattheson, 751
titled to deference when based upon an in-
F.2d 1439, 1440 (counsel made reasonable
formed and reasoned practical judgment); Wilk-
strategic decision to omit presentation of mitig-
erson v. Collins, 950 F.2d 1054, 1064-65 (5th
ating evidence of mental impairment where
Cir.1992) (affording strategic decision defer-
such evidence would have opened door to
ence where record established counsel retained
known evidence that defendant was a violent
an investigator to explore whether mitigating
sociopath).
evidence relating to defendant's background or
mental ability was available); McCoy, 874 F.2d FN264. Moore, 194 F.3d at 615.
at 964 (finding scope of investigation reason-
able where counsel investigated possibility of Finally, it is well established that the type of mitig-
mitigating evidence by interviewing everyone ating evidence that could have been presented in Wil-
on a list provided by the capital defendant and lis's case is relevant to the sentencing determination. In
determined none of them had anything good to Skipper v. South Carolina, the Supreme Court held that
say about the defendant); Jones v. Thigpen, 788 evidence that the defendant would not pose a danger is
F.2d 1101, 1103 (5th Cir.1986) (counsel either spared (but incarcerated) must be considered potentially
neglected or ignored critical matters of mitiga- mitigating, and that a jury could have drawn favor-
tion). able inferences from ... testimony regarding
[defendant's] character and his probable future conduct
FN261. See Moore, 194 F.3d at 615. See also FN265
if sentenced to life in prison. The Court also
Ex Parte Willis, No. 27, 787-01 at 6. stated that a defendant's disposition to make a well-
behaved and peaceful adjustment to life in prison is it-
FN262. Moore, 194 F.3d at 615, n. 9.
self an aspect of his character that is by its nature relev-
FN266
*33 In many situations, ineffective assistance ant to the sentencing determination. Further-
claims are rejected because the record established more, information showing a defendant as a good fam-
FN267
counsel conducted an adequate investigation, but made ily member is mitigating evidence.
an informed trial decision not to use the potentially mit-
FN265. Skipper v. South Carolina, 476 U.S. 1,
igating evidence because it could have a prejudicial
FN263 4 (1986).
backlash effect on the defense. This is not such
a case. The mitigating evidence here-testimony of Wil- FN266. Id. at 7.
lis's heroic acts and good behavior-could only have

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 42
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN267. Hitchcock v. Dugger, 481 U.S. 393, FN270. See Williams, 529 U.S. at 393 ([It] is
397 (1987) (vacating death sentence for failure undisputed that Williams had a right-indeed, a
of trial judge to consider, in part, that petitioner constitutionally protected right-to provide the
had been a fond and affectionate uncle to the jury with the mitigating evidence that his trial
children of one of his brothers). counsel either failure to discover or failure to
offer.) Moore, 194 F.3d at 615; Stafford v.
Defense counsel's decision to not present mitigating Saffle, 34 F.3d 1557 (10th Cir.1994) (finding
evidence was deficient performance, based on counsel's deficient performance and rejecting argument
failure to investigate, failure to prepare, failure to fol- that an alibi defense during the guilt phase is
low-up and the fact that there could be no benefit, and per se inconsistent with mitigating evidence re-
thus no strategic reason, to not present mitigation. lating to the defendant's personal background);
FN268
Brewer v. Aiken, 935 F.2d 850 (7th Cir.1991)
(granting relief on claim that counsel failed to
FN268. Willis also argues that defense counsel
offer mitigating evidence during the sentencing
was ineffective for failing to make an individu-
phase in case involving an alibi defense at the
alized closing argument. Because this claim ad-
guilt phase).
dresses the failure of defense counsel to ac-
quire knowledge of Willis and present that FN271. Ex Parte Willis, No. 27, 787-01 Find.
knowledge at trail, the claim is incorporated in- of Fact and Conc. of Law at 19-22. Willis's de-
to the claim of failure to investigate and fense counsel failed to contact potential wit-
present mitigating evidence. nesses for the sentencing phase who ultimately
spoke at the habeas evidentiary hearing. Some
The CCA's determination that counsel's failure to
of the witnesses were present in the courtroom
present mitigating evidence was not deficient perform-
for Willis's trial. Some of the witnesses made it
ance is an unreasonable application of Strickland. The
clear to defense counsel that they were able to
CCA based its decision, without discussion of federal
testify on Willis's behalf. Defense counsel nev-
authority, on the fact that counsel focused on the guilt-
er followed up. See Pet. at 125.
innocence phase of the trial instead of the punishment
phase, that counsel spoke with some people who knew Limits on investigation are reasonable only to the
Willis, and on the fact that Willis failed to show each extent that reasonable professional judgments support
FN269 FN272
attorney separately met the Strickland standard. the limitations. Because this principle constitutes
clearly established federal law, the CCA's determination
FN269. See Ex Parte Willis, No. 27, 787-01,
that defense counsel's investigation was adequate in this
Order at 6.
instance is an unreasonable application of clearly estab-
Clearly established federal law requires defense lished federal law. While the CCA stated that defense
counsel to prepare for and investigate mitigating evid- counsel decided to forego mitigation and to load guns
FN270 for the guilt-innocence phase, the CCA failed to address
ence. While the CCA correctly noted that de-
fense counsel spoke with friends and relatives, the CCA whether such a decision was reasonable considering the
did not determine whether the decision to limit the in- nature of the mitigating evidence available in this case.
vestigation at that point actually demonstrated reason- The available mitigation evidence included good acts by
able professional judgment. The CCA did not address Willis and his good behavior while incarcerated. This is
the trial court's factual finding that the limits on the in- not a case in which mitigation would be inconsistent
vestigation were due to a failure to follow-up and a lack with the theory at the first phase of the trial or even a
FN271 situation wherein mitigation would be damaging. Here,
of preparation.
no reason exists to refrain from presenting evidence

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 43
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

about the good deeds and nature of a defendant, particu- of violence that would constitute a continuing
larly when the evidence includes testimony by law en- threat to society. TEX.CODE CRIM. P. art.
forcement officers. Defense counsel's decisions to fore- 37.071 (Vernon 2004). See also Flores v. John-
go mitigation and focus on guilt was not strategic be- son, 210 F.3d 456, 458 (5th Cir.2000) (Garza,
cause it could not be expected to yield some benefit or J., specially concurring) (thoroughly discussing
FN273
avoid some harm to the defense. Therefore, the the future dangerousness question and the lack
CCA's deference to defense counsel's decision to not of scientifically reliable evidence to support
present mitigation is an unreasonable application of such a determination under federal law).
FN274
Strickland. Overall, the theory that scientific reliability
underlies predictions of future dangerousness
FN272. Strickland, 466 U.S. at 690-91. See has been uniformly rejected by the scientific
also Wiggins, 539 U.S. at 524-26; Moore, 194 community absent those individuals who
F.3d at 615. routinely testify to, and profit from, predictions
of dangerousness .... what separates the execu-
FN273. See Moore, 194 F.3d at 615.
tioner from the murderer is the legal process by
FN274. See 28 U.S.C. 2254(d). which the state ascertains and condemns those
guilty of heinous crimes. If that process is
4. Prejudice at the Sentencing Phase flawed because it allows evidence without any
*34 The testimony that could have been presented, scientific validity to push the jury toward con-
but was not, at the penalty phase of Willis's trial per- demning the accused, the legitimacy of our leg-
tained to Willis's propensity for future dangerousness. al process is threatened. Id. at 465, 469-70.
FN275
Law enforcement officers, including Pecos Nearly twenty-five years earlier, the Supreme
County Sheriff Bruce Wilson, would have testified on Court indicated its disagreement in Jurek v.
Willis's behalf. Sheriff Wilson, the Chief Deputy Sher- Texas, 428 U.S. 262, 274-76 (1976), but the is-
iff, and two Pecos County jailers would have testified to sue will continue to demand the consideration
Willis's good behavior in jail and that Willis was not a of the federal courts.
FN276
danger or threat in jail. In addition, defense
counsel could have presented evidence that Willis sur- FN276. Tr. at 85, ll. 21-23 (Wilson); Tr. at 47,
rendered himself to authorities when he learned of the ll. 11-12 (Harris); Tr. at 111, ll. 3-12 (Pringle);
FN277 Tr. at 113, ll. 14 (Pringle). See also Tr. at 97,
charges against him; testimony describing Willis
FN278 ll. 23-98 (Wilson); Tr. at 106, ll. 1-18 (Archer);
as a non-violent person; evidence of heroic acts
FN279 Tr. at 114, ll. 3-5 (Pringle); Tr. at 49, ll. 2-6
by Willis; and testimony describing Willis as a
FN280 (Harris).
loving family man.

FN275. During the sentencing phase of a Texas FN277. This information could have been eli-
capital trial, the jury must answer two ques- cited from Deputy Jackson, one of the two pro-
tions. The first concerns whether the crime was secution witnesses during the penalty phase.
committed deliberately: Whether the conduct Deputy Jackson met Willis in Odessa after Wil-
of the defendant that caused the death of the lis voluntarily came forward upon learning of
deceased was committed deliberately, and with the charges against him. Jackson did not have
the reasonable expectation that the death of the to restrain Willis on the drive to Fort Stockton.
deceased or another would result. The second In fact, Willis sat in the front seat next to
asks about the defendant's propensity for future Deputy Jackson during the drive. Tr. at 118, ll.
dangerousness: Whether there is a probability 22-25; Tr. at 119, ll. 16-24.
that the defendant would commit criminal acts
FN278. See e.g., Tr. at 54, ll. 23-55 (Officer

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 44
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

Butts). weight by the jury, since the jailers would

have had no particular reason to be favorably
FN279. Several witnesses were available who predisposed toward one of their charges).
could have testified to how Willis saved the life
of a boy who was drowning by diving in and FN283. See Strickland, 466 U.S. at 668.
pulling the child out of a car which had acci-
dentally backed into the lake. Tr. at 21, ll. FN284. See Ex Parte Willis, No. 27, 787-01
22-25; Tr. at 62, ll. 19-64; Tr. at 12, ll. 2-21. Find. of Fact and Conc. of Law at 20.
See also Tr. at 36, ll. 20-38; Tr. at 11, ll. 11-12,
FN285. See Ex Parte Guzmon, 730 S.W.2d
21.
724, 735 (finding defense prejudiced by inef-
FN280. See e.g., Tr. at 51, ll. 5-53 (Officer fective assistance of counsel at capital penalty
Butts). phase where the State's evidence to prove fu-
ture dangerousness was extremely weak). See
Thus, the mitigation evidence that could have been also Strickland, 466 U.S. at 696; Martinez-Ma-
presented goes directly to the issue of Willis's cias, 979 F.2d at 1067 (We are left with the
propensity for future dangerousness, one of the two firm conviction that [petitioner] was denied his
questions jurors must answer during the sentencing right to adequate counsel in a capital case in
FN281
phase. Because of the extent of mitigating evid- which actual innocence was a close question).
ence concerning Willis's non-violent demeanor, the fact
that law enforcement officers, including jailers, and the Furthermore, the CCA did not reach the prejudice
FN282 prong of the Strickland analysis and thus this Court is
County Sheriff, were willing to testify to Wil-
lis's good behavior in jail, there is reasonable probabil- not constrained by section 2254(d) in determining
FN286
ity that, absent the failure of defense counsel, the jury whether Willis was prejudiced. However, be-
would have concluded death was not the appropriate cause of the clarity of Supreme Court precedents hold-
FN283 ing that the type of mitigation evidence available in this
punishment for Willis. In addition, the State's FN287
aggravating evidence was less than substantial; prosec- case is relevant, and for the reasons stated above,
utors presented only two witnesses at the penalty phase, a determination that Willis was not prejudiced is an un-
each testifying to Willis's bad reputation in the unspe- reasonable application of federal law. The Court holds
FN284 that Willis received ineffective assistance of counsel at
cified communities in which Willis lived. In a
case in which innocence is a close question and in the sentencing phase because counsel's performance
which the State's evidence of future dangerousness is was deficient and Willis was prejudiced by counsel's
weak, it is more likely that defense counsel's errors con- deficiency.
tributed to the jury's affirmative findings on issues of
FN285 FN286. Wiggins, 539 U.S. at 534 (finding that
punishment. Here, Willis has shown that but for
the Court's review is not circumscribed by a
counsel's deficient performance, the result of the pro-
state court conclusion with respect to prejudice,
ceeding would have been different.
as neither of the state courts below reached this
FN281. See Franklin v. Lynaugh, 487 U.S. 164, prong of the Strickland analysis).
177 (1988) (good conduct in prison is relevant
FN287. See e.g., Skipper, 476 U.S. at 4, 7;
to the special issue concerning future danger-
Hitchcock, 481 U . S. at 397.
ousness under Texas capital sentencing
scheme). Finding reversible error at both the guilt-innocence
phase and the sentencing phase, the Court need not ad-
FN282. See Skipper, 476 U.S. at 8 (testimony
dress Willis's cumulative error claim.
of jailers would have likely been given great

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 45
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

CONCLUSION
Convinced, as stated above, that Willis's conviction
and sentence both were obtained in violation of the
United States Constitution, the Court grants Willis's re-
quest for relief as follows:

*35 It is hereby ORDERED that the State's Motion

for Summary Judgment is GRANTED IN PART and
DENIED IN PART.

It is further ORDERED that Petitioner's Cross-

Motion for Summary Judgment is GRANTED IN PART
and DENIED IN PART.

It is further ORDERED that Willis's Petition for

Writ of Habeas Corpus is GRANTED on the following
grounds: 1) Petitioner's Due Process rights were viol-
ated by the State's administration of medically inappro-
priate antipsychotic drugs without Willis's consent; 2)
the State suppressed evidence favorable and material to
the sentencing determination; 3) Petitioner received in-
effective assistance of counsel at the guilt-innocence
phase; and 4) Petitioner received ineffective assistance
of counsel at the sentencing phase.

W.D.Tex.,2004.
Willis v. Cockrell
Not Reported in F.Supp.2d, 2004 WL 1812698
(W.D.Tex.)

END OF DOCUMENT

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 1
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

ulted in victim's death.

Court of Criminal Appeals of Texas, [2] Criminal Law 110 1169.3

En Banc.
110 Criminal Law
Ernest Ray WILLIS, Appellant, 110XXIV Review
v. 110XXIV(Q) Harmless and Reversible Error
The STATE of Texas, Appellee. 110k1169 Admission of Evidence
110k1169.3 k. Curing error by facts
No. 69936. admitted by defendant. Most Cited Cases
June 7, 1989. Any error in admission of defendant's first two
Rehearing Denied Jan. 17, 1990. statements given to deputy at scene of offense was
cured by unobjected to admission of recorded third
Defendant was convicted in the 112th Judicial
statement, which contained the same information as
District Court, Pecos County, Brock Jones, J., of
was contained in defendant's prior two statements.
capital murder and sentenced to death. The Court of
Criminal Appeals, Berchelman, J., held that: (1) [3] Criminal Law 110 2033
evidence, which established that defendant's ver-
sion of events did not conform to physical evidence 110 Criminal Law
relating to the fire, was sufficient to support de- 110XXXI Counsel
termination that he started house fire which resulted 110XXXI(D) Duties and Obligations of Pro-
in victim's death; (2) prosecutor's closing argument secuting Attorneys
at punishment phase of murder trial did not consti- 110XXXI(D)5 Presentation of Evidence
tute comment upon defendant's failure to testify; 110k2032 Use of False or Perjured
and (3) evidence was sufficient to support finding Testimony
of future dangerousness. 110k2033 k. In general. Most Cited
Cases
Affirmed. (Formerly 110k706(2))
State's cross-examination of defense witness,
West Headnotes
who was a court-appointed arson investigator, did
[1] Homicide 203 1187 not inject knowingly false testimony concerning
witness' status as an engineer and therefore defend-
203 Homicide ant failed to establish that State obtained capital
203IX Evidence murder conviction through use of perjured testi-
203IX(G) Weight and Sufficiency mony.
203k1176 Commission of or Participation
in Act by Accused; Identity [4] Criminal Law 110 1036.1(3.1)
203k1187 k. False and improbable
110 Criminal Law
statements. Most Cited Cases
110XXIV Review
(Formerly 203k234(11))
110XXIV(E) Presentation and Reservation in
Evidence, which established that defendant's
Lower Court of Grounds of Review
version of events did not conform to physical evid-
110XXIV(E)1 In General
ence relating to the fire, was sufficient to support
110k1036 Evidence
determination that he started house fire which res-
110k1036.1 In General

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 2
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

110k1036.1(3) Particular Evid- 110XXIV(E) Presentation and Reservation in

ence Lower Court of Grounds of Review
110k1036.1(3.1) k. In gener- 110XXIV(E)1 In General
al. Most Cited Cases 110k1037 Arguments and Conduct of
(Formerly 110k1036.1(3)) Counsel
Any error in mere mention of polygraph exam- 110k1037.1 In General
ination was waived where defendant failed to re- 110k1037.1(1) k. Arguments
gister timely and specific objection to reference to and conduct in general. Most Cited Cases
polygraph examination. Jury argument error will not be waived for fail-
ure to object where argument is manifestly improp-
[5] Criminal Law 110 2077 er, or violates some mandatory statute, or injects
some new fact harmful to defendant's case; in mak-
110 Criminal Law
ing determination of whether a statement is mani-
110XXXI Counsel
festly, improper, harmful and prejudicial, courts are
110XXXI(F) Arguments and Statements by
to look at record as a whole.
Counsel
110k2076 Statements as to Facts and Ar- [8] Criminal Law 110 2132(2)
guments
110k2077 k. In general. Most Cited 110 Criminal Law
Cases 110XXXI Counsel
(Formerly 110k713) 110XXXI(F) Arguments and Statements by
There are four permissible areas of jury argu- Counsel
ment: summation of evidence, reasonable deduction 110k2129 Comments on Accused's Si-
from evidence, answers to argument of opposing lence or Failure to Testify
counsel, and pleas for law enforcement. 110k2132 Comments on Failure of Ac-
cused to Testify
[6] Criminal Law 110 1037.1(1) 110k2132(2) k. In particular pro-
secutions. Most Cited Cases
110 Criminal Law
(Formerly 110k721(3))
110XXIV Review
Prosecutor's closing argument at punishment
110XXIV(E) Presentation and Reservation in
phase of murder trial did not constitute comment
Lower Court of Grounds of Review
upon defendant's failure to testify.
110XXIV(E)1 In General
110k1037 Arguments and Conduct of [9] Witnesses 410 37(4)
Counsel
110k1037.1 In General 410 Witnesses
110k1037.1(1) k. Arguments 410II Competency
and conduct in general. Most Cited Cases 410II(A) Capacity and Qualifications in Gen-
Generally, failure to object to impermissible eral
jury argument waives any error. Rules App.Proc., 410k37 Knowledge or Means of Know-
Rule 52(a). ledge of Facts
410k37(4) k. Character or reputation.
[7] Criminal Law 110 1037.1(1) Most Cited Cases
(Formerly 110k37(4))
110 Criminal Law
Testimony of a reputation witness must be
110XXIV Review
based on discussion with others concerning defend-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 3
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

ant, or in hearing others discuss defendant's reputa- poses of capital sentencing proceeding. Vernon's
tion, and not just on personal knowledge. Ann.Texas C.C.P. art. 37.071(b)(2).

[10] Criminal Law 110 380 [13] Sentencing and Punishment 350H 1772

110 Criminal Law 350H Sentencing and Punishment

110XVII Evidence 350HVIII The Death Penalty
110XVII(G) Character of Accused 350HVIII(G) Proceedings
110k375 Character or Reputation of Ac- 350HVIII(G)2 Evidence
cused 350Hk1772 k. Sufficiency. Most Cited
110k380 k. Particular acts. Most Cited Cases
Cases (Formerly 110k1208.1(5))
Reputation testimony cannot be based solely Circumstances of offense alone are enough to
upon offense for which defendant is on trial; it must sustain an affirmative answer to special issue of fu-
include a discussion of matters other than instant ture dangerousness. Vernon's Ann.Texas C.C.P. art.
offense. 37.071(b)(2).

[11] Sentencing and Punishment 350H 1760 [14] Sentencing and Punishment 350H 1720

350H Sentencing and Punishment 350H Sentencing and Punishment

350HVIII The Death Penalty 350HVIII The Death Penalty
350HVIII(G) Proceedings 350HVIII(E) Factors Related to Offender
350HVIII(G)2 Evidence 350Hk1720 k. Dangerousness. Most Cited
350Hk1755 Admissibility Cases
350Hk1760 k. Defendant's charac- (Formerly 203k357(6))
ter and conduct. Most Cited Cases Facts of crime, which demonstrated an utter
(Formerly 203k358(1)) disregard for human life, defendant's prior criminal
Testimony of reputation witnesses, who spoke record, his reputation and age supported finding of
with numerous individuals from variety of com- future dangerousness in capital murder trial. Ver-
munities in which defendant had resided and whose non's Ann.Texas C.C.P. art. 37.071(b)(2).
testimony regarding defendant's reputation did not
stem solely from instant offense, was admissible in *379 Kenneth D. Dehart, Alpine, Steve Woolard,
capital murder trial at punishment phase. Fort Stockton, for appellant.

[12] Sentencing and Punishment 350H 1750 *380 J.W. Johnson, Dist. Atty., Fort Stockton, Jim
W. James, Sp. Prosecutor, Bryan, Robert Huttash,
350H Sentencing and Punishment State's Atty., Austin, for the State.
350HVIII The Death Penalty
350HVIII(G) Proceedings
Before the court en banc.
350HVIII(G)2 Evidence
350Hk1750 k. In general. Most Cited
Cases OPINION
(Formerly 110k1208.1(6)) BERCHELMANN, Judge.
Evidence adduced at both guilt/innocence and Appellant, Ernest Ray Willis, was convicted of
punishment phases of trial can be used by jury capital murder for the death of Elizabeth Beleu,
when considering future dangerousness for pur- who died in an intentionally set house fire.

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 4
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

Tex.Penal Code Ann. 19.03. The jury returned af- lis, testified that he escaped the fire when he, com-
firmative findings to the special issues submitted pletely naked, jumped out of a bedroom window.
pursuant to Tex.Code Crim.Proc.Ann. art. 37.071 Willis landed head first, and suffered a gash to his
(b). Appellant was thereafter sentenced to death. nose, a knot on his head, injuries to his legs and
groin area, and he inhaled so much smoke that he
Appellant raises six issues on appeal: 1) insuf- coughed up black, soot-like phlegm for hours.
ficiency of the evidence of appellant's guilt, 2) the Several witnesses testified to seeing Willis outside
admission of appellant's statements which were the burning house crying and coughing up black
neither the result of custodial interrogation, nor ad- phlegm, clothed in only what appeared to be a
missions by a party opponent, 3) prosecutorial blanket. Appellant was the fourth occupant of the
misconduct, 4) improper testimony relating to a house. He claimed to have been sleeping on a living
polygraph examination, 5) the State's closing argu- room sofa when the fire was set. Appellant suffered
ment which alluded to appellant's failure to testify, no injuries. Several witnesses testified that appel-
and 6) insufficiency of the evidence of appellant's lant stood outside the burning house barefoot, but
future dangerousness. We will affirm. otherwise fully dressed, smoked cigarettes without
FN2
respiratory distress, and demonstrated no agita-
Appellant's first point of error challenges the
tion over the fire or deaths of the two young wo-
sufficiency of the evidence of his guilt. He does not
men.
dispute that there was a murder resulting from an
arson. Instead, he limits his challenge to whether FN1. The tenants of the house, Michael
there is sufficient evidence that he started the fire. and Cheryl Robinson, were not present
The standard of review for challenges to sufficiency when the fire was set. After two severe ar-
claims is whether, viewed in the light most favor- guments, both were arrested and sub-
able to the judgment, any rational trier of fact could sequently spent the night in jail. The four
have found the essential elements of the crime bey- occupants of the house were the Robin-
ond a reasonable doubt. Jackson v. Virginia, 443 sons' guests. Appellant and his cousin were
U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 temporarily residing with the Robinsons.
L.Ed.2d 560 (1979); Carlsen v. State, 654 S.W.2d The deceased women were simply visiting
444, 448 (Tex.Cr.App.1983) (Opinion on Reh'g). the Robinsons for the day and drinking
The identical standard is applied to sufficiency with the Robinsons prior to the Robinsons'
challenges involving circumstantial evidence cases. arrest. Apparently, the women had never
Carlsen, 654 S.W.2d at 449. In assessing this stand- met either appellant or appellant's cousin
ard, if there is a reasonable hypothesis other than prior to this visit.
guilt of the accused, then it cannot be said that the
guilt has been shown beyond a reasonable doubt. FN2. Billy Willis testified that for several
Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989) hours after the fire he tried to smoke cigar-
; Carlsen, 654 S.W.2d at 450 (McCormick, J., con- ettes, but was unable to do so because of
curring). respiratory problems.

[1] The record reflects that in the early morning A variety of arson experts investigated the
hours of June 11, 1986, a fire of incendiary nature wreckage and testified at trial that the *381 burn
destroyed a home in Iraan which was then occupied patterns and degree of burning indicated that a
FN1
by four persons. Two women, Elizabeth Beleu flammable liquid was poured on the floor of the
and Gail Allison, died in the blaze. Their charred house throughout the living and dining areas, in
remains were found in separate bedrooms of the front of the bedroom door jams, around the front
three bedroom home. Appellant's cousin, Billy Wil- and back door entrances, and beneath and on top of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 5
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

a sofa in the living area. It was upon this sofa that Deputy Sheriff Larry Jackson testified that he
appellant claimed to have been sleeping when the thoroughly examined appellant shortly after the fire
fire was set. The burn patterns and degree of burn- and that appellant had no burn marks. Deputy Jack-
ing indicated that the fire originated in the living son smelt smoke on Billy Willis, appellant's cousin,
area of the house and quickly, if not simultan- but did not smell smoke on either appellant or ap-
eously, ignited the dining room and kitchen. There- pellant's clothing. Deputy Jackson purchased
after, the fire spread to the bedrooms. One certified clothes for appellant and took appellant's clothing
arson investigator testified that if anyone was sleep- for evidence. An examination of appellant's cloth-
ing on the sofa in the living area, as appellant con- ing indicated no cinder marks, although there was a
tended to have been, he would have been burned. stain on the shoulder which was later identified as
Another arson investigator stated that if appellant betadine, an antiseptic. Appellant told the authorit-
had been on the sofa when the fire was set, appel- ies that he acquired the stain running through the
lant would have been burned, perhaps fatally so. burning house.

Appellant's version of the events do not con- Approximately a day after the fire, Deputy
form to the physical evidence relating to the fire. Jackson was washing out the house with a garden
Appellant gave the authorities three statements on hose found on the premises. The front portion of
the day of the fire. Originally he stated that both he the hose had been cut off. Deputy Jackson learned
and his cousin slept in the living area of the house from the tenant of the house that this was a newly
while the women slept in separate bedrooms. Ap- purchased garden hose which was previously intact.
pellant supposedly awoke to the smell of fire and Later, Deputy Jackson found a smaller portion of
ran throughout the house, amidst the blaze, trying the garden hose which reeked with the smell of gas-
to alert the other occupants of the house. Appellant oline. A trace analysis of the smaller portion of the
told the authorities that he was unable to enter the hose indicated the presence of gasoline. The De-
bedrooms due to the fire and smoke, and instead partment of Public Safety crime lab detected un-
ran out the front door of the house and ran around known volatile components on appellant's pants
the outside breaking windows in an attempt to se- through gas chromatograph testing. However, no
cure an escape route for those still inside. However, known accelerant was positively identified on the
no broken glass was found inside the house. Broken pants.
glass was found outside the house, consistent with
breakage from the pressure created by the fire. Ap- Several witnesses testified that the day of the
pellant later stated that his cousin was asleep in bed fire appellant had no burn marks, no singed cloth-
with Gail Allison, one of the women who failed to ing, and no singed hair. However, two days after
FN3 the fire, appellant demonstrated for Sheriff Bruce
escape the fire. In all other respects, appellant's
later statements were consistent with the original Wilson a very bad burn mark on appellant's
statement. Appellant did not testify at trial. shoulder, which appellant claimed to have incurred
in the fire. Several witnesses, including Sheriff
FN3. Willis, appellant's cousin, originally Wilson, stated that appellant had no such injury the
told the police that he and appellant were day of the arson. Specifically, Sheriff Wilson testi-
sleeping in the living room. However, Wil- fied that he personally examined appellant the day
lis recanted this statement and testified that of the fire and that there was no way he could
he was in bed with Allison. When ques- have overlooked the burn mark on appellant's
tioned why he changed his story, Willis ex- shoulder. Additionally, the doctor who examined
pressed concern about damaging Allson's appellant and *382 appellant's cousin within hours
reputation. of the fire testified that appellant had no respiratory

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 6
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

problems and did not complain of any injuries. party opponent. Appellant complains of the admis-
sion of his three statements made the day of the
Challenging the sufficiency of the evidence, fire. As set forth previously, appellant stated that he
appellant argues that the evidence raises reasonable slept on the sofa, awoke to a house engulfed in
hypotheses other than appellant's guilt, thus war- flames, ran throughout but was unable to go to the
ranting an acquittal. See, for example, Butler, 769 bedrooms, eventually ran outside and broke the
S.W.2d at 237. He specifically contends that it is windows. With the one exception regarding where
reasonable to conclude that either of the deceased his cousin slept, appellant's three statements were
women set the fire in order to commit suicide, or consistent. Appellant's first two statements were
that appellant's cousin set the fire. However, appel- given to Deputy Larry Jackson at the scene of the
lant's version of events surrounding the arson is offense. Appellant's third statement, given after ap-
wholly incompatible with any of these theories. Be- FN4
pellant received his Miranda warnings, was
cause an accelerant was poured beneath and on top tape recorded by Deputy Jackson several hours
of the sofa upon which appellant claimed to have after the fire. To make the third statement, appellant
been sleeping, and because the fire was set in the voluntarily went to the Sheriff's Department. At tri-
room where the sofa was located, it is inconceiv- al appellant objected to the first two statements as
able that either of the other three occupants started containing hearsay and because they were custodial
the fire without seriously burning or killing appel- interrogations not being used for impeachment pur-
lant. Moreover, appellant's statement that he ran poses. However, appellant's counsel specifically
barefoot throughout the burning house is implaus- stated he had no objection to the admission of the
ible. Several witnesses testified that appellant did recorded third statement. Ranger Roger Colemen
not appear tender footed after the fire. It defies also testified to appellant's statements made at the
both logic and common sense that appellant could scene of the offense. Appellant objected to Ranger
run barefoot throughout a house engulfed in flames Coleman's testimony because the statements were
and across floors doused with a flammable liquid not res gestae of the offense and because they con-
and neither burn any portion of his clothes or body, stituted custodial interrogation not in compliance
nor suffer respiratory distress, nor singe his hair, with Tex.Code Crim.Proc.Ann. art. 38.22 Sec. 3.
nor smell of even the slightest hint of smoke. Like- FN5
wise, appellant's claim that once outside he broke
all the windows in order to assist those remaining FN4. Miranda v. Arizona, 384 U.S. 436, 86
inside is inconsistent with the fact that all the S.Ct. 1602, 16 L.Ed.2d 694 (1966).
broken glass was found outside the house.
FN5. Art. 38.22 Sec. 3,
These facts, as viewed in the light most favor- Tex.Code.Crim.Proc.Ann. precludes ad-
able to the verdict, are sufficient for a rational trier mission of oral statements by an accused
of fact to have concluded beyond a reasonable made as a result of custodial interrogation
doubt that appellant is guilty of the instant offense. unless the statement is electronically recor-
Splawn v. State, 162 Tex.Crim. 197, 283 S.W.2d 66 ded in compliance with specific guidelines.
(1955); Taylor v. State, 735 S.W.2d 930
(Tex.App.-Dallas 1987). Therefore, appellant's first In response, the State argues that appellant
point of error is overruled. failed to preserve error because the objections at
trial do not comport with the ground asserted on ap-
[2] Appellant's second point of error alleges peal. It is well established that a point of error on
that the trial court erred in admitting the verbal appeal must correspond to the precise objection
statements of appellant which were neither the res- made in the trial court. Thomas v. State, 723
ult of custodial interrogation, nor admissions by a S.W.2d 696, 700 (Tex.Cr.App.1986); *383 Hodge

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 7
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

v. State, 631 S.W.2d 754, 757 (Tex.Cr.App.1982); Appellant's second point of error is overruled.
Williams v. State, 549 S.W.2d 183, 187
(Tex.Cr.App.1977). Appellant's complaint on ap- [3] Appellant's third point of error contends
peal that the statements were not admissions by a that his trial was fundamentally unfair based upon
party opponent sufficiently corresponds to his prosecutorial misconduct. Specifically, he com-
FN6 plains of the State's cross-examination of defense
hearsay objection raised at trial.
witness D. Michael Smith. Smith was a court-
FN6. The gist of appellant's argument is appointed arson investigator for appellant. He was
that appellant intended these statements to employed, among other things, as a consultant with
be exculpatory in nature; therefore, they an engineering consulting company, and he had
should not fall into the category of not previous experience with arson investigation. Smith
hearsay provided by Rule 801(e)(2)(A) initially testified that he had a degree in mechanical
Tex.R.Crim.Evid. The rule classifies ad- engineering, but later testified that he was an engin-
missions by a party-opponent as not eer. Upon cross-examination, Smith admitted that
hearsay where the statement is offered he was not a certified engineer. The prosecution
against a party and is his own statement in pointed out to Smith that it was a violation of the
either his individual or representative capa- Texas Engineering and Practices Act to call one's
city. Appellant acknowledges that he can self an engineer without being licensed and re-
find no case law from this Court to support gistered pursuant to the provisions of the Act, art.
his novel interpretation of Rule 3271a 1.2 V.A.C.S., and ultimately accused
801(e)(2)(A), nor does he cite this Court to Smith of breaking the law by doing so. Appellant
case law so interpreting the predecessor now argues that there is an exemption to the above-
common law rule. referenced requirement regarding registration and
licensing, and that Smith may fall into the exemp-
However, as the State correctly notes, appellant tion where a person is an employee or a subordinate
failed to object to the introduction of the recorded of a person holding a certificate of registration. Art.
third statement. Appellant readily admits that the 3271a 20(c).
third statement contains the same information as
was contained in appellant's prior two statements. With this, appellant concludes that his convic-
In Brown v. State, 757 S.W.2d 739, 741 tion was obtained through the use of false testi-
(Tex.Cr.App.1988), this Court reiterated the rule re- mony. To support this assertion, appellant cites
garding cumulative evidence. Burkhalter v. State, 493 S.W.2d 214
(Tex.Cr.App.1973) and Losada v. State, 721
In Anderson v. State, 717 S.W.2d 622 S.W.2d 305 (Tex.Cr.App.1986). In Burkhalter,
(Tex.Cr.App.1986) the rule regarding such cumu- supra, we reversed a conviction where the jury was
lative evidence was stated as follows: not permitted to hear evidence that an agreement
Inadmissible evidence can be rendered harmless existed between the State and the attorney of a cru-
if other evidence at trial is admitted without ob- cial witness, a co-defendant, where the State prom-
jection and it proves the same fact that the inad- ised not to prosecute the co-defendant if he would
missible evidence sought to prove. Id. at 628. testify without claiming immunity. In Losada,
See also East v. State, 702 S.W.2d 606 supra, we rejected a defendant's contention that dis-
(Tex.Cr.App.1985) and Lichtenwalter v. State, crepancies in testimony were tantamount to the
554 S.W.2d 693 (Tex.Cr.App.1977). State's use of perjured testimony to acquire his con-
viction. Simply put, neither of these cases support
Any conceivable error was cured by the unob-
appellant's assertion.
jected to admission of the recorded third statement.

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 8
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

It is true that the State may not obtain a convic- Q. In one of your vehicles?
tion through the use of perjured testimony. Napue
v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d A. Yeah. Well, let's see, now. I don't know.
1217 (1959). However, we cannot characterize the Everybody went down-took them down for that
prosecutor's cross-examination as injecting know- polygraph test deal. I'm not real clear on the
ingly false testimony. Whether Smith, as senior times, I'm really not. I don't know how many
vice-president of this consulting company, fell days was in between or whatnot.
within the employee exception embodied within the
Q. Okay. But did you take them to Odessa at
Act is an item into *384 which appellant was free
some point in time, or do you recall?
to delve on re-direct, but did not do so. Smith testi-
fied at length regarding the arson investigation, and A. Yeah. I took-we drove down for the polygraph
his qualifications as an arson investigator were nev- and whatnot.
er in question. Appellant fails to demonstrate that
the State used false testimony to obtain its convic- Q. Is that the last time that you saw (the appel-
FN7
tion. lant), when you took him to Odessa?

FN7. San Antonio attorney William A. A. Yeah. The best I remember. I think that was it.
Brant presented an amicus curiae brief on
behalf of appellant which likewise chal- There was no other reference to the examina-
lenges the impeachment of Smith. We have tion; the jury was never informed of the results of
reviewed the brief and find the contentions the test.
raised therein to be without merit.
Appellant did not object to the testimony until
[4] In his fourth point of error, appellant com- after the witness concluded testifying. In a bill of
plains of the testimony of Michael Robinson, one of exception made pursuant to appellant's belated ob-
the tenants of the house, because Robinson alluded jection, Robinson testified that one of the prosec-
to the fact that several people took a polygraph ex- utors did not warn him about mentioning the poly-
amination. Prior to trial, the court granted appel- graph examination. As the State correctly points
lant's motion in limine to prevent mention of the out, Robinson was never questioned about whether
polygraph examination and agreed with appellant the other prosecutor who tried the case, or any other
that the prosecutors should inform the witnesses not representative of the District Attorney's Office,
to make reference to the polygraph exam. Specific- spoke with Robinson regarding the proscription
ally appellant urges that the State violated the against mentioning the examination.
court's order by failing to inform Robinson to not
Moreover, the record reflects that appellant
mention the examination. At trial, the following ex-
failed to register a timely and specific objection to
change took place between the prosecutor and Mi-
the reference of the polygraph examination. There-
chael Robinson.
fore, any error in the mere mention of the examina-
[THE PROSECUTOR] Q. Where did they go tion is waived. Armstrong v. State, 718 S.W.2d 686,
after that? 699 (Tex.Cr.App.1985). See also Rule 52,
Tex.R.App.Pro. The granting of a motion in limine
[ROBINSON] A. Took them back to Odessa. will not preserve error. Gonzales v. State, 685
S.W.2d 47, 50 (Tex.Cr.App.1985). Appellant's
Q. You did? fourth point of error is overruled.
A. (Witness nods head in the affirmative.) [5] Appellant's fifth point of error alleges that

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 9
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

the prosecutor's closing argument at the punishment [6][7] Appellant failed to object to the state-
phase of trial improperly commented on appellant's ments now raised on appeal. It is generally pre-
failure to testify. There are four permissible areas sumed that a failure to object to impermissible jury
of jury argument: 1) summation of the evidence, 2) argument waives any error. Romo v. State, 631
reasonable deduction from the evidence, 3) answers S.W.2d 504 (Tex.Cr.App.1982). See also Rule
to argument of opposing counsel, and 4) pleas for 52(a) Tex.R.App.Pro. However, this does not end
law enforcement. Alejandro v. State, 493 S.W.2d our inquiry. This court has created an exception to
230 (Tex.Cr.App.1973). the waiver rule for cases in which the prosecutor's
argument is so egregious that no instruction to dis-
Appellant complains of the following state- regard could possibly cure the harm. Romo, 631
ments: S.W.2d at 505. That is, jury argument error will not
be waived for failure to object where the argument
My clients aren't in the courtroom today. They
is manifestly improper, or violates some mandatory
are dead. Understand that distinction. This guy
statute, or injects some new fact harmful to the de-
has been able to sit in here and observe everyone
fendant's case. Mathews v. State, 635 S.W.2d 532,
that took the stand, look at all of you throughout
539 (Tex.Cr.App.1982); Walthall v. State, 594
this proceeding, and hear everything that has
S.W.2d 74 (Tex.Cr.App.1980). In making the de-
gone on. My clients are in their graves *385 right
termination of whether a statement is manifestly
now because of what this Defendant did ...
improper, harmful and prejudicial, courts are to
* * * * * * look at the record as a whole. Curtis v. State, 640
S.W.2d 615 (Tex.Cr.App.1982); Simpkins v. State,
He didn't even help his cousin when he hung up 590 S.W.2d 129, 136 (Tex.Cr.App.1979).
in that window coming out to stop from hitting
head first on the ground, ladies and gentlemen. [8] With respect to the first above-referenced
He did nothing. He didn't even raise his little fin- remark, we cannot agree with appellant that the
ger. And he showed no mercy or no remorse af- statement, [t]his guy has been able to sit in here
terwards. and observe everyone that took the stand, look at all
of you throughout this proceeding, and hear
THE COURT: Mr. Johnson, your time is up. everything that has gone on, constitutes a com-
ment upon appellant's failure to testify. It is clear
[THE PROSECUTOR]: If you observed, he sat from the context that the prosecutor's remark was
right here through this entire trial with this dead juxtaposing appellant's presence with the absence
pan, insensitive, expressionless face- of the deceased women. Appellant fails to cite any
cases in which we have characterized a similar
[DEFENSE COUNSEL]: Your Honor, I'm going
statement as an indirect comment on a defendant's
to object to the prosecutor continuing to argue
failure to testify.
after the Court has told him his time is up.
Next we turn to the prosecutor's second re-
THE COURT: I will ask you to close.
mark: he sat here right through this entire trial
[THE PROSECUTOR]: With his cold fish eyes with this deadpan, insensitive, and expressionless
on everybody and everything that has come in face ... with his cold fish eyes on every body ... and
here, and he just merely stared and watched very he just merely stared and watched very impass-
impassively, very coldheartedly, much like he ively, very coldheartedly, much like he probably
probably did that morning outside the fire when did that morning outside the fire ... Again, appel-
he watched and listened. lant contends that this statement amounts to an in-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 10
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

FN8
direct comment upon his failure to testify. See Both testified that they spoke with individuals in
Dickinson v. State, 685 S.W.2d 320 several communities in which appellant had resided
(Tex.Cr.App.1984) (argument that you haven't and that appellant's reputation for being peaceful
seen one iota of remorse, one iota of shame char- and law-abiding in those communities was bad.
acterized as an indirect comment), but cf. Jones v.
State, 693 S.W.2d 406 (Tex.Cr.App.1985) [9][10] Hearsay is inherent in testimony re-
(argument that you haven't seen any remorse not garding reputation. The testimony of a reputation
characterized as an indirect comment). Viewing the witness must be based on discussion with others
record as a whole, we hold that the statements were concerning the defendant, or on hearing others dis-
not so manifestly improper, harmful and unjust as cuss the defendant's reputation, and not just on per-
to warrant a reversal. An instruction to disregard sonal knowledge. Jackson v. State, 628 S.W.2d
could have cured the harm. See *386 Bower v. 446, 450 (Tex.Cr.App.1982). Additionally, reputa-
State, 769 S.W.2d 887 (Tex.Cr.App.1989) tion testimony cannot be based solely upon the of-
(instruction to disregard could cure harm where ar- fense for which the defendant is on trial; it must in-
gument referred to defendant's lack of remorse and clude a discussion of matters other than the instant
nontestimonial demeanor). As a result, appellant is offense. Watson v. State, 605 S.W.2d 877
not entitled to the Romo exception to the waiver (Tex.Cr.App.1979) (opinion on reh'g).
rule. Romo, 631 S.W.2d at 505. Appellant's fifth
[11] Essentially, appellant complains that Jack-
point of error is overruled.
son and Coleman did not personally know appellant
FN8. The prosecutor's argument is actually or where appellant resided, and therefore should
an impermissible comment upon appel- have been precluded from testifying about appel-
lant's nontestimonial demeanor. See Good lant's reputation. In Hubbard v. State, 496 S.W.2d
v. State, 723 S.W.2d 734, 737 924, 925 (Tex.Cr.App.1973), this Court entertained
(Tex.Cr.App.1986). However, unlike the a similar challenge and held that an officer's testi-
fact scenario in Good, the improper com- mony regarding reputation is permissible where the
ment in the case at bar was made during officer based the opinion on discussions with fellow
the punishment phase. Additionally, we officers and persons who lived in appellant's neigh-
held in Good that when the trial court borhood. See also Castillo v. State, 739 S.W.2d
overruled Good's timely and specific ob- 280, 292 (Tex.Cr.App.1987). It is clear from the re-
jection, the court thereby implicitly placed cord that the witnesses spoke with numerous indi-
its imprimatur on the State's argument. viduals from a variety of communities in which ap-
Id., 723 S.W.2d at 738. pellant had resided. Clearly, the testimony regard-
ing appellant's reputation did not stem solely from
Last, appellant challenges the sufficiency of the the instant offense. There was no error in the ad-
evidence to support the jury's finding of future dan- mission of reputation testimony from either Deputy
gerousness. Tex.Code Crim.Proc.Ann. art. 37.071 Sheriff Jackson or Ranger Coleman.
(b)(2). In the process of doing so, appellant chal-
lenges the validity of the admission of reputation [12][13] Finally, we turn to appellant's conten-
testimony during the punishment phase of the trial. tion that the evidence was insufficient to support a
Despite the multifarious nature of this point of er- finding of future dangerousness. In making such an
ror, given the severity of the sentence imposed, we assessment, we must view the evidence in the light
will address both components of the issue. most favorable to the verdict to determine whether
a rational trier of fact could have found the ele-
Deputy Sheriff Jackson and Ranger Coleman ments of Tex.Code Crim.Proc.Ann. art. 37.071
were the only witnesses at the punishment phase. (b)(2) beyond a reasonable doubt. Keeton v. State,

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 11
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

724 S.W.2d 58, 61 (Tex.Cr.App.1987). Evidence probative of future dangerousness. Keeton, 724
adduced at both the guilt/innocence and punishment S.W.2d at 61. Appellant's tape recorded statement
phases of trial can be used by the jury when consid- indicated that appellant was convicted of a felony
ering future dangerousness. Mitchell v. State, 650 involving immoral conduct and that appellant had
S.W.2d 801, 812 (Tex.Cr.App.1983). Additionally, several driving while intoxicated convictions. Ap-
this Court has repeatedly stated that the circum- pellant's prior convictions could have contributed to
stances of the offense alone are enough to sustain the jury's determination of future dangerousness. In
an affirmative answer to the second special issue. the same respect, unadjudicated offenses may con-
James v. State, 772 S.W.2d 84, 90 stitute a basis for finding a defendant to be a con-
(Tex.Cr.App.1989); Moreno v. State, 721 S.W.2d tinuing threat to society. Mitchell, 650 S.W.2d at
295, 302 (Tex.Cr.App.1986); O'Bryan v. State, 591 812. In the case at bar, there was repeated evidence
S.W.2d 464, 480 (Tex.Cr.App.1979). adduced at the guilt/innocence phase, without ob-
jection, that appellant abused prescription drugs
[14] The facts of this crime demonstrate an ut- and marijuana. This, too, could have been a factor
ter disregard for human life; indeed, they depict a in the jury's determination.
man so determined to murder the very people with
whom he earlier socialized that he effectively The testimony of a defendant's reputation is
sealed off their escape routes by pouring an acceler- probative of a likelihood to commit future acts of
ant on the door jams to their bedrooms and on the violence. Cockrum v. State, 758 S.W.2d 577, 593
front and back doors to the house immediately be- (Tex.Cr.App.1988); Ex parte Alexander, 608
fore sending the house up in flames. Appellant suc- S.W.2d 928, 930 (Tex.Cr.App.1980). Here, two
ceeded in killing two women, and seriously en- witnesses testified that appellant's reputation for be-
dangered the life of his own cousin. When the fire ing peaceful and law-abiding was bad in several
fighters began to arrive, appellant did not volunteer communities. The jury could have used this evid-
*387 the information that two women were trapped ence in reaching the determination of future danger-
inside the smoldering house. Instead, he impass- ousness.
ively smoked cigarettes while watching the fire
fighters battle the blaze. Last, we turn to the age of the defendant. We
have held that a defendant's youth may militate
Appellant argues that the crime is not particu- against a finding of future dangerousness. Barney v.
larly heinous because, for example, there is no State, 698 S.W.2d 114 (Tex.Cr.App.1985). In the
evidence that he sexually molested the women be- case at bar, appellant was forty years old at the time
fore they were burned beyond recognition. We do of the offense. Appellant's age, especially when
not find this argument persuasive. Obviously, the coupled with his prior offenses and bad reputation
jury did not regard this double murder to be sub- in the communities in which he resided, is a factor
stantially less egregious simply because there is no the jury may have taken into consideration when
evidence of sexual assault. Moreover, the jury can answering yes to the second special issue. Appel-
consider the number of people killed in determining lant's final point of error is overruled.
the likelihood of future dangerousness. Moreno v.
State, 721 S.W.2d 295 (Tex.Cr.App.1986). We con- Finding no reversible error, we affirm the judg-
clude that the nature of the offense is so extreme ment of the trial court.
that a rational trier of fact could have reasonably
DAVIS, CLINTON and DUNCAN, JJ., concur in
answered the second special issue in the affirmative
the result.
based solely on the facts of the offense.
Tex.Cr.App.,1989.
Additionally, a prior criminal record may be

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 12
785 S.W.2d 378
(Cite as: 785 S.W.2d 378)

Willis v. State
785 S.W.2d 378

END OF DOCUMENT

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

111 S.Ct. 279 Page 1
498 U.S. 908, 111 S.Ct. 279, 112 L.Ed.2d 234
(Cite as: 498 U.S. 908)

Supreme Court of the United States

Ernest Ray WILLIS, petitioner
v.
TEXAS

No. 89-7782
October 9, 1990

Case *908 below, 785 S.W.2d 378.

Petition for writ of certiorari to the Court of

Criminal Appeals of Texas.

Denied.

Justice MARSHALL dissenting:

Adhering to my view that the death penalty is
in all circumstances cruel and unusual punishment
prohibited by the Eighth and Fourteenth Amend-
ments, Gregg v. Georgia, 428 U.S. 153, 231, 96
S.Ct. 2909, 2973, 49 L.Ed.2d 859 (1976), I would
grant certiorari and vacate the death sentence in this
case.

Justice SOUTER took no part in the consideration

or decision of this petition.

U.S.,1990
Willis v. Texas
498 U.S. 908, 111 S.Ct. 279, 112 L.Ed.2d 234

END OF DOCUMENT

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 1
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

No. P-01-CA-20.
Only the Westlaw citation is currently available. Aug. 9, 2004.

United States District Court, AMENDED ORDER GRANTING PETITION FOR

W.D. Texas, Pecos Division. WRIT OF HABEAS CORPUS
Ernest Ray WILLIS, Petitioner, FURGESON, J.
v.
Janie COCKRELL, Director, Texas Department of
Criminal Justice, Institutional Division, Respondent.

TABLE OF CONTENTS
INTRODUCTION
FACTUAL AND PROCEDURAL BACKGROUND
STANDARD OF REVIEW
LEGAL ANALYSIS
I. The State Trial Court's Post-Conviction Factual Findings are Properly Before the Court
II. The State Trial Court's Post-Conviction Findings of Fact
A. The State Unnecessarily Medicated Willis While Incarcerated and During Trial
B. Findings of Ineffective Assistance of Counsel at the Guilt-Innocence and Sentencing Phases
1. Failure to Investigate Willis's Demeanor and Discover the Administration of Antipsychotic Drugs
2. Failure to Object to the State's Use of Willis's Demeanor and the State's Descriptions of Willis as an Animal
3. Failure to Cross-Examine Aggravating Evidence and to Present Mitigating Evidence
C. Prosecution's Failure to Disclose Pretrial Psychological Report
D. Facts Related to Willis's Innocence Claim
III. Innocence Claim
A. The State's Theory of the Fire
B. Confession of David Martin Long
C. Willis's Evidence Contradicting the State's Theory of the Fire
D. Analysis of Willis's Innocence Claim
IV. Administration of Medically Inappropriate Antipsychotic Medications
A. Administration of Medically Inappropriate Drugs
B. Whether a Showing of Involuntariness Requires an Objection
V. Prosecutorial Suppression of Evidence
VI. Ineffective Assistance of Counsel
A. The Texas CCA's Analysis
B. Ineffective Assistance of Counsel At the Guilt-Innocence Phase
1. Failure to Investigate Demeanor & Failure to Discover Unnecessary Medication

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 2
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

2. Failure to Object to Prosecution's Use of Willis's Demeanor at Guilt-Innocence Phase

3. Prejudice at the Guilt-Innocence Phase
C. Ineffective Assistance at the Sentencing Phase
1. Failure to Investigate and Discover the Wright Report
2. Failure to Object to the State's Descriptions of Willis as an Animal
3. Failure to Cross Examine and Present Mitigating Evidence
4. Prejudice at the Sentencing Phase
CONCLUSION
destroyed a home in Iraan, Texas. At the time, the house
INTRODUCTION was occupied by four people: Elizabeth Belue, Gail Al-
*1 Ernest Willis brings this petition under 28 lison, Ernest Willis and Billy Willis. All were guests of
U.S.C. 2254 for a writ of habeas corpus challenging the resident tenants of the house, Michael and Cheryl
his conviction and sentence of death in Texas state court Robinson. The Robinsons were not home at the time.
FN1
for the murder of Elizabeth Grace Belue. The Two of the guests, Elizabeth Belue and Gail Allison,
FN2
parties filed cross motions for summary judgment. died in the fire due to smoke inhalation. Their remains
After an extensive review of the state court determina- were found in two of the bedrooms of the three bed-
tion, the parties' briefing and the applicable law, the room house. The other two guests who survived the fire
Court finds that Willis's petition for writ of habeas cor- were Petitioner, Ernest Willis, and his cousin, Billy
pus should be granted because both his conviction and Willis. The Willis cousins did not know Belue or Allis-
sentence were obtained in violation of the United States on prior to the day of the fire. Billy Willis escaped the
Constitution. Specifically, the Court grants Willis's peti- fire when he jumped, naked, out of a bedroom window.
tion on the following grounds: 1) Willis's due process
rights were violated by the State's administration of According to Ernest Willis, on the night of the fire
medically inappropriate antipsychotic drugs without he was sleeping on the sofa in the living room. Willis
Willis's consent; 2) the State suppressed evidence favor- further claims that the smell of fire awakened him and
able and material to the sentencing determination; 3) that he ran through the house trying to awaken the occu-
Willis received ineffective assistance of counsel at the pants but could not enter the bedrooms due to the fire
guilt-innocence phase; and 4) Willis received ineffect- and smoke. Willis claims that when his attempts to
ive assistance of counsel at the sentencing phase. On all reach the others failed, he ran out the front door and
other grounds, Willis's petition is denied. around the outside breaking windows in an attempt to
secure an escape route for those still inside. The State of
FN1. Petition, (Docket No. 13), filed Dec. 12, Texas disputes Willis's version of the events.
2001 [hereinafter Pet .].
Willis was ultimately arrested and charged with the
FN2. Respondent's answer and motion for sum- murder of Elizabeth Belue. The indictment charged Pe-
mary judgment (Docket No. 19) and Petition- titioner with intentionally and knowingly causing the
er's Reply (Docket No. 22). Petitioner's Reply death of Elizabeth Belue in the course of committing ar-
indicates that Petitioner believes that the record son on a habitation. According to the State, Willis inten-
before the Court is satisfactory and thus this tionally poured a flammable liquid accelerant on the
petition is ripe for decision. See Pet.'s Reply, at FN3
floor of the house and set it afire. But even if one
2. relies exclusively upon the testimony of witnesses
presented by the prosecution at trial, numerous discrep-
FACTUAL AND PROCEDURAL BACKGROUND
ancies remain regarding the events leading up to the
In the early morning hours of June 11, 1986, a fire
fatal fire. The State did not present at trial a theory of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 3
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

Willis's alleged motive. ded in actual innocence, Willis relies upon evidence he
introduced at the state post-conviction hearing support-
FN3. Both of the individuals who survived the ing his account of the pertinent events. But, as will be
fire, Billy and Ernest Willis, were initially sus- detailed in Section IV addressing the innocence claim,
pects. Judge Jones rejected the innocence claim based upon in-
sufficiency of the evidence Willis offered in support.
*2 After a jury trial before the Honorable Brock
Jones of the District Court of Pecos County, Texas, STANDARD OF REVIEW
112th Judicial District, Willis was convicted on August The federal habeas statute, as amended by the Anti-
4, 1987 of capital murder and sentenced to death for terrorism and Effective Death Penalty Act of 1996
Belue's murder. Willis's sentencing phase was held on (AEDPA), 28 U.S.C. 2254, provides that:
August 5, 1987. Willis's conviction was affirmed on dir-
FN4
ect appeal on June 7, 1989, and on October 9, 1990, An application for a writ of habeas corpus on behalf
FN5
the United States Supreme Court denied certiorari. of a person in custody pursuant to the judgment of a
Willis then filed for state post-conviction relief on Oc- State court shall not be granted with respect to any
tober 8, 1991. On June 7, 2000, following five days of claim that was adjudicated on the merits in State court
hearing, Judge Jones of the Texas trial court issued de- proceedings unless the adjudication of the claim -
tailed findings of fact and conclusions of law and re-
FN6 (1) resulted in a decision that was contrary to, or in-
commended granting relief to Willis. On December
13, 2000, the Texas Court of Criminal Appeals volved an unreasonable application of, clearly estab-
(CCA) denied Willis all relief. lished Federal law, as determined by the Supreme
Court of the United States; or
FN4. Willis v. State, 785 S.W.2d 378, 387
(Tex.Crim.App.1989), reh'g denied, (Jan. 17, (2) resulted in a decision that was based on an unreas-
1990), cert. denied, 498 U.S. 908 (1990). onable determination of the facts in light of the evid-
FN7
ence presented in the State court proceeding.
FN5. Willis v. Texas, 498 U.S. 908 (1990).

FN6. Judge Jones was the judge for both Wil- FN7. 28 U.S.C. 2254(d).
lis's trial and his state post-conviction hearing.
A state court's decision is deemed contrary to
Willis then filed the instant petition alleging the clearly established federal law if the state court arrives
following claims for relief: 1) Willis is innocent and at a conclusion opposite to that reached by the Supreme
thus the Eighth and Fourteenth Amendments require Court on a question of law or if the state court decides a
that his conviction and sentence be vacated; 2) the case differently than the Supreme Court on a set of ma-
FN8
State's wrongful administration of antipsychotic medic- terially indistinguishable facts. Under the
ations to Willis violated his right to due process and unreasonable application clause, a federal habeas
other constitutional rights, including the right to counsel court may grant the writ if the state court identifies the
and the right to confront witnesses; 3) defense counsel correct governing principle from the Supreme Court's
rendered ineffective assistance at the guilt-innocence decisions but unreasonably applies that principles to the
FN9
phase; 4) defense counsel rendered ineffective assist- facts of the prisoner's case.
ance at the sentencing phase; 5) the prosecution sup-
FN8. Williams v. Taylor, 529 U.S. 362 (2000).
pressed evidence material to the sentencing determina-
tion; and 6) the cumulative effect of error outlined in FN9. Id.
the above claims violated due process.
*3 Pursuant to section 2254(e)(1), state court find-
In support of his argument for habeas relief groun-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 4
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

ings of fact are presumed to be correct, and the petition- some circumstances the state trial court's findings do
FN14
er bears the burden of rebutting the presumption of cor- not survive the CCA's denial of relief. In
FN10
rectness by clear and convincing evidence. When Micheaux v. Collins, the Fifth Circuit held that the state
the state habeas judge also served as the trial judge, as trial court's findings did not survive the CCA's denial of
Judge Jones did in this case, the state judge's factual relief where 1) the CCA denied relief without written
FN11
findings are entitled to particular deference. order and 2) the factual findings were directly inconsist-
FN15
ent with the CCA' peremptory denial of relief.
FN10. 28 U.S.C. 2254(e). See also Pondexter
v. Dretke, 346 F.3d 142, 146 (5th Cir.2003); FN12. Craker v. Procunier, 756 F.2d 1212,
Valdez v. Cockrell, 274 F.3d 941, 947 (5th 1213-14 (5th Cir.1985). See also Westley v.
Cir.2001). Johnson, 83 F.3d 714, 721 n. 2 (5th Cir.1996).

FN11. See Davis v. Blackburn, 789 F.2d 350, FN13. Westley, 83 F.3d at 721 n. 2.
352 (5th Cir.1986); Vuong v. Scott, 62 F.3d
673, 684 (5th Cir.1995), cert. denied, 516 U.S. FN14. Micheaux v. Collins, 944 F.2d 231, 232
1005 (1995). (5th Cir.1991) (en banc).

LEGAL ANALYSIS FN15. Id. See also Singleton v. Johnson, 178

Before addressing each of Willis's claims, the de- F.3d 381, 384, 85 (5th Cir.1999). In Walbey v.
termination must first be made whether the Texas trial Dretke, 2004 WL 909736 (5th Cir.2004) (per
court's post-conviction factual findings are properly be- curiam) (unpublished), the Fifth Circuit applied
fore this Court in light of the CCA's denial of relief. Micheaux instead of Craker even though the
CCA had issued a written order. However, the
I. The State Trial Court's Post-Conviction Factual Find- written order in Walbey was silent as to the
ings are Properly Before the Court state trial court's findings of fact and did not
At the outset, the Court notes that the posture of state whether the CCA accepted or rejected the
this dispute, cross-motions for summary judgment, in- factual findings of the trial court. In addition,
dicates the parties' agreement that the state trial court's the Walbey court stated that the facts found by
post-conviction findings of fact are properly before this the state trial court were directly inconsistent
Court on habeas review. Neither party requested an with the CCA's denial of habeas relief. In Wal-
evidentiary hearing. Moreover, the Court, on independ- bey, the CCA's opinion contained no specific
ent review, finds the state trial court's factual findings factual findings or reasoning to support its ulti-
are properly considered here, even in light of the Texas mate conclusion, and thus the terse opinion of
CCA's denial of relief. the ... CCA here is the functional equivalent of
a denial without written order. Id. at *3. The
According to Craker v. Procunier, the Fifth Circuit Fifth Circuit remanded the case to the district
requires that deference is owed to the state court's post- court for an evidentiary hearing. Although un-
conviction factual findings when denial by the Texas published because it provided no change or ex-
Court of Criminal Appeals was not inconsistent with planation of a generally established rule of law,
FN12
those factual findings. This must be the case be- Walbey is mentioned here because it demon-
cause, for example, the appellate court might hold that strates a helpful application of the distinction
the facts determined by the trial court did not warrant between Micheaux and Craker.
relief based on the appropriate legal standards, and such
a holding would not be inconsistent with those factual The CCA's order in the instant case more closely
FN13
findings. Despite the deference typically afforded resembles Craker on the Craker/Micheaux con-
FN16
the state court's post-conviction factual findings, in tinuum. This Court discusses the CCA's analysis

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 5
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

of each of Petitioner's claims in the relevant section in The State continued to daily administer these doses
this opinion. Generally though, for two of the claims be- of Haldol and Perphenazine to Willis throughout the
fore the Court-prosecutorial suppression of evidence course of his trial, including the jury selection, guilt-
and wrongful administration of antipsychotic drugs-the innocence and penalty phases. These proceedings began
CCA identified a legal principle and found that the facts on July 8, 1987 and concluded on August 5, 1987. Wil-
as found by the trial court did not meet the legal stand- lis was formally sentenced on August 5, 1987. The State
ard. For the other two claims-ineffective assistance of continued to administer Haldol and Perphenzine to Wil-
counsel at the guilt-innocence phase and at the senten- lis until August 27, 1987. The following day, Willis was
cing phase-the CCA discussed facts from the record dif- transported from Pecos County to the Texas Department
ferent than, but not inconsistent with, the facts relied of Corrections (TDC) in Huntsville. Willis has not
upon by the trial court. Then, based on a determination been administered antipsychotic medication at any time
of those different facts as legally significant, and on the since August 27, 1987-either during subsequent stays in
basis of legal standards the CCA employed, the CCA the Pecos County Jail (pursuant to bench warrants) or
FN17
denied relief. Because the CCA's opinion in this case in- while in the custody of TDC.
cluded legal reasoning and discussion of the facts, it is
not the functional equivalent of denial without written FN17. This factual finding implies a lack of
order. And for all four of the above claims, the CCA's medication beyond the date of the trial court's
opinion was based on the use of, in whole or in part, an post-conviction factual findings. While the re-
erroneous legal standard irrespective of the relevant cord suggests that the finding remains true long
facts used in relation to that legal standard. Therefore, after the trial court's hearing and until today,
this Court must defer to the post-conviction factual this Court makes no such finding and instead
findings of the state trial court. defers to the trial court's finding and that relev-
ant period of time.
FN16. Walbey, 2004 WL 909736 at *2.
There are multiple reasons the medications admin-
II. The State Trial Court's Post-Conviction Findings of istered to Willis were inappropriate according to Judge
Fact Jones. First, the dosages for Haldol (40 mg. per day)
*4 Here, the Court provides a summary of the state and Perphenazine (8 mg.-32 mg. per day) that the State
trial court's post-conviction factual findings. The relev- gave to Willis during the course of the trial were high
ant facts will be reiterated or developed for the analysis doses, even for acutely psychotic patients. The maxim-
of each of Petitioner's claims in the appropriate section, um dose of Haldol for a severely psychotic person is 15
as well. mg. per day. Willis received more than twice that
amount at 40 mg. per day. Second, Willis was admin-
A. The State Unnecessarily Medicated Willis While In- istered two antipsychotic medications. Judge Jones
carcerated and During Trial found that the combination of two different antipsychot-
Willis was arrested and incarcerated at Pecos ic drugs has more than an additive effect on a patient
County Jail on October 22, 1986. Willis was not taking and that the administration of antipsychotic drugs to a
any antipsychotic medications at the time of his arrest non-psychotic individual increases the side-effects of
and initial incarceration in the Pecos County Jail. The the drugs.
State began administering Haldol (the brand name for
the generic drug Haloperidol) to Willis on February 23, Judge Jones also found that common side effects of
1987. As of March 23, 1987, the State began adminis- antipsychotic medication include: flat or little facial ex-
tering 40 milligrams (mg.) of Haldol per day to Wil- pression, inexpressiveness, rigidity of the facial
lis; and on May 30, 1987, the State began administering muscles, fixed gaze, drowsiness, confusion and dimin-
between 8 mg. and 32 mg. of Perphenazine per day to ished ability to communicate with others. Judge Jones
Willis. stated that all of these side effects were exhibited by

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 6
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN22
Willis during his trial, and Willis's demeanor at the not consent.
evidentiary hearing on his habeas petition was markedly
FN18 FN20. Id. at 11.
different from his demeanor at trial. Judge Jones
found that Willis's expression, from the moment he
FN21. Id.
stepped into the courtroom for voir dire throughout the
entire trial, reflected an apparent indifference to the pro- FN22. As will be discussed later, although not
ceedings. Judge Jones found that Willis's demeanor at so determined by Judge Jones, the evidence
trial was a direct result of the antipsychotic medications suggests that Willis was actually medicated
he was receiving, and was absolutely typical of without his knowledge for symptoms he did not
FN19
known side effects of antipsychotic medications. manifest.
Finally, Judge Jones found that the prosecution seized
upon Willis's demeanor in the guilt-innocence and pun- B. Findings of Ineffective Assistance of Counsel at the
ishment phases of the trial, asking the jury to draw in- Guilt-Innocence and Sentencing Phases
ferences of guilt and future dangerousness from Willis's Judge Jones found ineffective assistance of counsel
lack of apparent feeling or emotion. at multiple stages in Willis's representation.

FN18. Judge Jones also found that, while an in- 1. Failure to Investigate Willis's Demeanor and Discov-
dividual's I.Q. is typically stable throughout er the Administration of Antipsychotic Drugs
one's life, Willis's intelligence test at the time Judge Jones found that defense counsel took no
of trial was significantly lower than at the time steps to determine the cause of Willis's appearance or
of the evidentiary hearing on the habeas peti- demeanor during the course of trial. As a result, defense
tion. Ex parte Willis, No. 27, 787-01 Find. of counsel never learned that the State was administering
Fact and Conc. of Law at 10. high doses of antipsychotic medication to Willis during
his incarceration at Pecos County Jail both before and
FN19. Id. during trial. Defense counsel did not speak with any
person with medical training concerning Willis's phys-
*5 Judge Jones also made findings regarding the
ical and emotional appearance. Defense counsel did not
medical justifications for the antipsychotic medications.
attempt to review Willis's Pecos County Jail medical re-
Judge Jones found that the State's administration of the
cords.
drugs to Willis was without any medical need. Anti-
psychotic medications like Haldol and Perphenazine are Judge Jones found that Willis's defense counsel not
not justified unless a patient is suffering psychotic only had the right to access those records, but that it
symptoms as a result of a lifelong psychotic disorder was rudimentary and basic for counsel to gather
FN20
. Psychosis is a very, very serious psychiatric such records. In addition, defense counsel recognized a
condition ... manifest by symptoms such as schizo- problem with Willis's demeanor and suspected that the
phrenia, derangement, hallucinations, delusions, para- problem could be related to medication that Willis was
FN21
noia, and formal thought disorder. Judge Jones taking but, nevertheless, failed to investigate Willis's
found that nothing in any of Willis's records, or his so- demeanor and failed to gather medical records. Had de-
cial or medical history, indicates that he needed to take fense counsel gathered Willis's Pecos County Jail re-
antipsychotic medications. Furthermore, the record does cords, counsel would have known Willis was unneces-
not show that the State established the requisite sarily receiving large doses of Perphenazine and Haldol
overriding justification and medical appropriateness FN23
prior to and during his trial.
findings before administering the mind-dulling or psy-
chotropic drugs to Willis during his trial. Finally, the FN23. Ex Parte Willis, No. 27, 787-01 Find. of
state court found that although Willis did not affirmat- Fact and Conc. of Law at 17.
ively object to the medication, his failure to object was

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 7
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

2. Failure to Object to the State's Use of Willis's De- sel asked these witnesses a total of two questions. De-
meanor and the State's Descriptions of Willis as an An- fense counsel knew in advance who the State's wit-
imal nesses would be and what the subject matter of their
Judge Jones found that the State referred to Willis's testimony would be. Counsel did not investigate the
demeanor during trial as evidence of guilt and danger- veracity of the witnesses or otherwise develop evidence
ousness and the State urged jurors to infer a lack of re- or arguments to respond to the government's penalty
morse based on Willis's demeanor. Defense counsel did phase case.
not object to any of these references by the prosecution.
FN24 Judge Jones also found that Willis's case was his
The state trial court found that the prosecution
characterized Willis as a pit bull, an animal, and a counsel's first capital trial. The defense did not prepare
rat, during voir dire, closing arguments and at the for the penalty phase, did not meet with Willis in ad-
FN25 vance of the penalty phase, introduced no evidence, and
penalty phase.
presented no witnesses whatsoever on Willis's behalf.
FN24. Id. The Court of Criminal Appeals, in its Despite being unprepared, defense counsel did not re-
decision affirming Willis's conviction on direct quest a continuance or a recess to prepare for the pen-
appeal, held that failure to object to an imper- alty phase. In fact, defense counsel met with Willis less
missible jury argument generally waives any than three hours prior to July 1987, when jury selection
error. See Willis, 785 S.W.2d at 385. commenced. Defense counsel spoke to four or five
people who knew Willis but failed to follow-up on the
FN25. Ex Parte Willis, No. 27, 787-01 Find. of limited information those individuals had pertaining to
Fact and Cone. of Law at 18. Willis.

*6 Based upon these findings, Judge Jones con- Judge Jones found that defense counsel could have
cluded as a matter of law that defense counsel's failure presented the following mitigating evidence but did not
to object to the State's use of Willis's demeanor contrib- do so: testimony of at least five Pecos County Law En-
uted to defense counsel's failure to meet the standard of forcement Officers that Willis was a respectful and
reasonableness required for effective assistance of well-behaved prisoner who was not the type to act viol-
counsel. The Court considers the legal conclusions re- ently or misbehave; testimony of other individuals that
lated to the factual findings in the relevant section be- Willis was non-violent; testimony that Willis turned
low. himself in when he learned of the outstanding indict-
ment against him; testimony of heroic acts by Willis
3. Failure to Cross-Examine Aggravating Evidence and
FN26 who, for example, saved the life of a drowning boy and
to Present Mitigating Evidence
assisted his infant niece who had been severely burned
FN26. Id. at 19-22. in a car fire; testimony of family and friends describing
Willis as a caring family man and responsible individu-
FN27
Judge Jones made the following findings of fact al. The state trial court found that the above mitig-
with respect to defense counsel's failure to cross-ex- ating evidence was readily accessible and available to
amine purported aggravating evidence and failure to defense counsel at little or no cost. Every character wit-
present mitigating evidence on Willis's behalf. The pen- ness who testified at the post-conviction hearing stated
alty phase of Willis's trial lasted less than half a day. that he or she would have been willing to testify on Wil-
The transcript from the penalty phase consumes barely lis's behalf at his trial.
ten pages. The prosecution called two witnesses, both
local law enforcement officers, who testified that Willis FN27. Defense counsel contacted none of these
had a bad reputation in the unspecified communities in witnesses. Some of the witnesses were present
which he resided. On cross-examination, defense coun- in the courtroom for portions of Willis's trial.
Ex Parte Willis, No. 27, 787-01 Find. of Fact

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 8
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

and Conc. of Law at 21. ination of Willis. On July 12, 1987, Dr. Wright ex-
amined Willis, who was then in the custody of the
C. Prosecution's Failure to Disclose Pretrial Psycholo- Pecos County Jail, to determine: 1) Willis's competency
gical Report to stand trial; 2) Willis's sanity and the presence or ab-
*7 At the post-conviction hearing in state court, sence of mental illness; and 3) the likelihood that Willis
Judge Jones heard evidence concerning a pretrial psy- would present a future danger. Shortly after the examin-
chological report finding that Willis was not a future ation, Dr. Wright orally reported his findings directly to
danger. The report was submitted to the prosecution and J.W. Johnson in the District Attorney's office. Dr.
never turned over to the defense before or during trial. Wright informed Johnson that, based on the evaluation
The findings of fact are summarized below. Based upon of Willis, he didn't think this was a good death penalty
these findings of fact, Judge Jones held that the evid- case, as he found no evidence to support a conclusion
ence suppressed by the prosecution was both favorable of future dangerousness for the purposes of the Texas
and material and that Willis was entitled to habeas relief FN30
FN28 capital sentencing statute. Furthermore, Dr.
for due process violations. Wright determined that Willis was competent to stand
trial and did not exhibit any form of mental illness or
FN28. See Brady v. Maryland, 373 U.S. 83, 87
mental retardation. At the time of Willis's trial, Dr.
(1963) (prosecutorial suppression of evidence
Wright did not discuss the psychological examination of
that is favorable to an accused violates due
Willis with anyone other than Johnson.
process where the evidence is material either to
guilt or punishment, irrespective of the good FN29. At the time Dr. Wright conducted the
faith or bad faith of the prosecution). examination of Willis, there was a pending mo-
tion for a psychiatric evaluation. After the eval-
On December 2 and 3, 1997, before the post-
uation and report by Dr. Wright, the State with-
conviction evidentiary hearing at the state trial court,
drew its motion for a psychiatric evaluation
Willis was interviewed by Dr. Mark Cunningham, a
and stated that no expert testimony of Willis's
clinical and forensic psychologist. During this inter-
mental state would be offered at trial. Pet. at
view, Willis stated that he recalled having been ex-
156.
amined by a psychologist while awaiting trial in the
Pecos County Jail. No reference to a report of a pretrial FN30. Ex Parte Willis, No. 27, 787-01 Find. of
psychological or psychiatric examination existed in the Fact and Conc. of Law at 2.
trial transcript, the trial exhibits, the case files of Wil-
lis's trial counsel, or the court's files. Consequently, an On Monday, July 20, 1987, the first day of testi-
FN31
investigation was conducted to determine whether Wil- mony in Willis's trial, Dr. Wright sent, by Federal
lis's recollection was accurate. Express, a final copy of the Wright report and the
Wright invoice from his office in San Angelo, Texas, to
As a result of the investigation, it was determined the District Attorney's office in Fort Stockton, Texas.
Dr. Jarvis Wright, a forensic psychologist, examined FN32
On Tuesday, July 21, 1987, at 2:41 p.m., the Fed-
Willis on July 12, 1987 and prepared a written report eral Express package with the Wright report and the
memorializing his findings. Dr. Wright forwarded a Wright invoice arrived at Johnson's office. Albert
copy of his report (the Wright report) to Willis's post- Valadez, the assistant prosecutor in Willis's trial, accep-
conviction counsel in December 1997. FN33
ted and signed for this Federal Express package.

Dr. Wright conducted the examination and prepared FN31. Willis's trial lasted two and one-half
FN29
the written report on behalf of the prosecution. weeks.
Before Willis's trial, the District Attorney's office con-
tacted Dr. Wright and requested a psychological exam- FN32. Ex Parte Willis, No. 27, 787-01 Find. of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 9
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

Fact and Conc. of Law at 3. Federal Express re- tual disputes related to Willis's claim that he is actually
cords, as well as Dr. Wright's records, are the innocent. Willis's version of the incident leading to ar-
source of all facts relating to the delivery and rest and the events surrounding the incident differ from
receipt of the Wright report. the State's theory of the case. Because the factual dis-
pute was not resolved by Judge Jones's findings of fact,
FN33. During the state habeas hearing, the the parties' factual allegations and corresponding argu-
State repeatedly denied that the prosecution ments are presented in the next section addressing the
had any knowledge of the Wright report, a innocence claim.
claim belied by the facts presented during hear-
ing. III. Innocence Claim
Due to other relief given on different grounds, it is
*8 Had Dr. Wright been called as a witness during not necessary for this Court to resolve the parties' dis-
the penalty phase of Willis's trial, he would have testi- pute regarding Willis's claim of innocence. But, to
fied, based on his examination of Willis, that he knew provide a background for the other substantive claims,
of no information that would justify a conclusion that the Court discusses in detail the facts Willis alleges.
FN34
Willis would be dangerous in the future. Further- The factual allegations recited here are from Willis's pe-
more, the Wright report stated that if sworn testimony tition and were not included in Judge Jones's factual
indicates that [Willis's] behavior until the time of the findings. Although Willis's allegations of innocence and
current alleged offense was no worse than his previous factual allegations supporting the claim were presented
behaviors, we could probably say with safety that the to the state trial court, the state trial court only made
current alleged behavior was an isolated event which he one factual finding concerning the innocence claim. The
FN35
probably will not repeat. Judge Jones found an state trial court found that David Long, who had con-
abundance of available evidence, through the testimony fessed to the crime for which Willis was convicted and
of acquaintances of Willis and law enforcement of- sentenced to death, refused to testify at the state eviden-
ficers, established that Willis had no history of violent tiary hearing. The state trial court determined that
behavior and that any prior episodes of misconduct Long's prior confession, which was tape recorded by
were nonviolent. law enforcement officers, was not sufficiently corrobor-
FN36
ated to be admissible. Therefore, other than Long's
FN34. Ex Parte Willis, No. 27, 787-01 Find. of
confession, these facts related to Willis's innocence
Fact and Conc. of Law at 4, citing Dr. Wright's
claim have been neither specifically rejected nor accep-
testimony at the state post-conviction hearing.
ted by the state court, though the state court did say that
FN35. Id. at 2, quoting Def. E.H. Ex. 25, at the testimony was insufficient to support a finding that
FN37
5-6. Willis is innocent.

Judge Jones therefore found that the prosecution FN36. Id. at 25.
failed to disclose the Wright report to the defense prior
FN37. Id. at 33.
to or during Willis's trial. Although Willis's trial attor-
neys agreed to allow the prosecutors to conduct a pre- A. The State's Theory of the Fire
trial psychological examination of Willis to ensure his *9 At trial, the State's experts testified that the burn
competency to stand trial, the prosecution did not reveal patterns and degree of burning indicated that a flam-
that an assessment of future dangerousness had also mable liquid was poured on the floor of the house,
been done. throughout the living and dining areas, in front of the
bedroom door jambs, around the front and back door
D. Facts Related to Willis's Innocence Claim
entrances, and beneath and on top of the sofa in the liv-
The state trial court did not resolve substantial fac-
ing area. The State's experts also testified that the fire

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 10
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

originated in the living area of the house and quickly, if carcerated, Long repeatedly told George Wheat, the su-
not simultaneously, ignited the dining room and kit- pervisor of Psychiatric Services at Ellis One Unit, that
chen. Thereafter the fire spread to the bedrooms. The he had set the Iraan fire. Initially, Long only told Wheat
State's arson investigators testified that if Willis had that there was an inmate on death row who Long knew
been sleeping on the sofa he would have been burned. was innocent because that inmate had been convicted of
a crime Long had committed. Over time, Long identi-
The State asserted that Willis's version of events FN40
fied Willis as the innocent inmate. Though Wheat
was incredible for two main reasons. First, while broken was initially skeptical of Long's confession, Wheat be-
glass was found outside the house, none was found in- came satisfied that the confession was truthful. Wheat
side, and thus the State said that the evidence did not decided the information had to be disclosed, and Long
support Willis's claim that he ran around the outside of signed a consent form for disclosure. Wheat then in-
the house trying to break windows so that the people in- formed the Warden, Pecos County law enforcement au-
side could escape. Second, Willis had no burn marks, no thorities, Willis and Willis's counsel at the time, of
singed clothing, no singed hair, did not smell like Long's confession. On September 11, 1990, Deputy
smoke, and his clothing did not have cinder marks. Jackson, one of the primary investigators of the Iraan
FN38
Two days after the fire, Willis had a very bad fire, conducted a nearly three-hour long videotaped in-
burn mark on his shoulder which Willis claimed oc- FN41
terview of Long.
curred in the fire but several witnesses, including Sher-
iff Wilson, stated Willis had no such injury the day of FN40. Long and Willis first met during recre-
the fire. ation time when Long asked Willis where he
was from; Willis answered Pecos. Long said he
FN38. A stain was found on the shirt, and the knew Billy Willis from Pecos and Petitioner
stain was identified as betadine, an antiseptic. Willis said Billy Willis had testified at his trial.
At this point, Long realized Petitioner Willis
Other evidence included the fact that the day after
was convicted of the crime Long committed.
the fire, Deputy Jackson, one of the investigators on the
Petitioner Willis was then transferred to a work
case, discovered that the front portion of the garden
program and so Willis and Long no longer
hose had been cut off. Jackson learned from the tenants
communicated at recreation time. Long reques-
that this was a new hose that had previously been intact.
ted a legal visit with Willis but decided not to
Later, Jackson found a smaller portion of the garden
say anything until he saw how Willis's direct
hose, a trace analysis of which indicated the presence of
appeal resolved. Long contemplated not saying
gasoline. No known accelerant was positively identified
anything until the hour of his own execution.
on Willis's pants.
Long requested a second legal visit at which
FN39 time Long asked about Willis's direct appeal.
B. Confession of David Martin Long
Willis said his conviction and sentence were
FN39. While the state court found the corrob- affirmed. At this point, Long told Willis that he
oration of Long's confession insufficient, the committed the Iraan fire.
corroborating witnesses were: David Paulk,
Amelia Fuentes, Billy Willis, George Wheat, FN41. Prior to the interview, Jackson read
Michael and Cheryl Robinson and Marshall Long his Miranda rights.
Smyth. See Pet. at 44-48.
The substance of Long's confession is as follows:
Long was an inmate confined at the same facility Long set the fire because he wanted to hurt or kill Billy
with Willis. He was convicted of capital murder on an Willis, Petitioner's cousin. Billy and Long were long-
unrelated charge and has since been executed. While in- time associates who participated in various criminal
activities together, usually drug related. On June 10,

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 11
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

1986, Long drove to Iraan from Round Rock, Texas, During the investigation of the fire, Mrs.
where Long lived, to purchase some drugs from Billy. Fuentes toldDeputy Jackson about the vehicle.
In his pick-up truck, Long carried a half-gallon bottle of He told her to forget about it. Pet. at 23, citing,
Wild Turkey alcohol mixed with Everclear grain alco- Tr. at 146, ll. 19-23 (Fuentes), May 23, 1996.
hol and some methamphetamine. Long arrived in Iraan
sometime between 2:00 a.m. and 4:00 a.m. He parked FN44. The modus operandi of both fires was
his truck about a block away from the Robinson house similar. Long set fire to the Bay City victim's
where Billy was staying. He sat in the truck for about trailer using liquor as an accelerant, as he
twenty minutes drinking the Wild Turkey and Everclear claimed he did in the Iraan fire. The reason
mixture and injecting himself with methamphetamine. Long gave for killing the victim of the Bay
He then went into the house with the Wild Turkey and City fire and for attempting to kill Billy Willis
Everclear mixture. was the same, that he held a grudge against
both and snapped in their presence. The Bay
*10 Long testified that as he was in the house he City fire confession was used by the State in
FN42
became overcome with anger, and poured the Long's capital murder trial for a triple axe
Wild Turkey and Everclear mixture on the carpet murder for which he was convicted and sen-
around the dining room table and around the living tenced to death. Furthermore, in Long's direct
room. Long did not pour any of the mixture on the appeal, the Court of Criminal Appeals upheld
couch where Willis was sleeping, because he did not the admission of the Bay City confession and
want to wake him. Long then used his Bic lighter to ig- stated it was corroborated by other witness'
nite some clothing draped over a piece of furniture in testimony. Long v. State, 823 S.W.2d 259, 268
the living room. After setting the fire, Long left the n. 12 (Tex.Crim.App.1991).
house, returned to his truck, and drove a couple of
FN43 C. Willis's Evidence Contradicting the State's Theory of
blocks down the street. He then left Iraan. Long FN45
stated he used the same method to start the fire in Iraan the Fire
as he did to start a fire in Bay City, Texas, that also
FN44 FN45. This opinion provides only a short sum-
killed someone. Finally, during his confession,
mary of the evidence presented during the state
Long described the Robinson house in great detail.
post-conviction hearing that negates the State's
FN42. Long stated that the feeling started theory of the fire. A full description of the
coming over me, the bitterness that I have to- evidence presented and a description of Mr.
ward Billy, which I had not ever went down in- Smyth's qualifications and methodology can be
to detail about, things that happened in the found at Pet. at 25-36.
past. And when this happens to me, I kind of
At the state post-conviction hearing, Marshall
like get locked in my mind and things go black
Smyth, a fire investigator, testified for Willis. Smyth's
and white, and I started feeling an extreme bit-
testimony corroborates Long's accounts, shows that the
terness toward him, because at one time I was FN46
State's theory of the case was mistaken and sup-
going to shoot him ... because of some things
ports Willis's version of the events. The State had a
that happened in the past.... Pet. at 22, citing
pour pattern theory of the fire, meaning that in every
Def. E.H. Ex. 4 at 14, ll. 17-24 (Long).
area of the house where there was burn damage, an ac-
FN43. Mrs. Amelia Fuentes, who lived across celerant had been poured. Under this theory, Willis
the street from the Robinson house, saw a could not have run out of the house because the floor
vehicle traveling slowly past her house on Fifth would have been in flames. According to the pour pat-
Street before any of the police or fire vehicles tern theory, Willis would have had to spread accelerant
arrived. She had never seen the vehicle before. in or near bedrooms and exits for the fire to burn as it

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 12
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

did. Other evidence disputes the State's theory of the

case. The clothes Willis wore on the night of the fire
FN46. Deputy Jackson, one of the State's arson were submitted to the State's lab; no accelerant was
experts, admitted during his interview of Long found on the clothes. In addition, accelerant was not
that he is not much of a[sic] arson investigat- found on the carpet samples from the Robinson house
or. Pet. at 26, citing, Def. E.H. Ex. 4 at 74, ll. that were submitted to the lab, and the State never pro-
5-6. duced any evidence regarding the type of accelerant
used to start the fire, according to the State's theory. Fi-
Smyth testified that the pour pattern theory was
nally, consistent with Willis's statement regarding his
physically impossible, and that the burn damage to the
actions upon discovering the fire-that he awoke to the
house could not have been caused by an accelerant such
house already on fire and ran around trying to rouse
as gasoline. Instead, Smyth testified that the burn dam-
others-Willis left in the house his boots, socks and pain
age throughout the house was the result of flashover
medication.
conditions throughout the house during various points
FN47
in the fire. Smyth also testified that, consistent *11 In addition, Willis argues that his post-fire de-
with Long's account of the fire, the maximum area of meanor, which the State used as evidence of guilt dur-
origin of the fire was the living room and dining room. ing Willis's trial, can be explained in a manner that also
FN48
Smyth's tests showed that it would have taken ap- supports his innocence. At the time of the fire, Willis
proximately ten to eleven minutes for the fire to spread was receiving care for chronic back pain and had under-
from the chair where it was ignited, according to Long, gone four back surgeries as a result of injuries suffered
to the surrounding carpeting soaked with the alcohol in past years as an oil field worker. Willis's prior back
mixture. That period of time is consistent with Willis's surgeries resulted in a chronic condition called arach-
description that, once awakened, he ran through the noiditis. As a result, at the time of the fire, Willis was
house and then exited through the front door without taking prescription opiate drugs like Talwin and Per-
serious injury. FN49
codan to make his back pain tolerable. Two days
before the fire, on June 9, Willis went to the emergency
FN47. Flashover is a transition point, actually,
room because of excruciating back pain. He was given
in the development of a fire inside a compart-
an injection of Butorphanal and some Phernergan. Later
ment or room. And it's the point at which the
that day he took at least nine 50 mg. tablets of Talwin.
burning materials in this fire became so strong
that they form a gas cloud under the ceiling of FN49. For exact quantities of the drugs taken,
the room. And this gas cloud thickens up. And see Pet. at 39-40.
at some point temperatures on the floor are
raised to their-the ignition point of the materi- The next day, the day before the fire, at around 4:00
als due to the radiation of the heat from the gas a.m., Willis again went to the emergency room, where
cloud. And, at that point, all the combustible he was given a dose of Demerol and some Emet-Con, a
materials in the room essentially simultan- drug for treatment of nausea. He returned to the Robin-
eously burst into flame. So it's that transition son house at 7:00 a.m., took three tablets of Talwin and
point in the buildup of a fire from something a muscle relaxant. Two hours later, he was still in pain,
less than full room involvement to the point and he took another three tablets of Talwin. An hour
where all the materials in the room are in- later he went to see Dr. Edwin Franks, who gave him a
volved in the flame. Pet. at 28, citing Tr. at steroid injection and a prescription for additional back
32, ll. 9-33 (Smyth), Jan. 12, 1998. pain medications. Throughout the rest of the day, Willis
took at least six more Talwin tablets and one Percodan
FN48. Pet. at 28, n. 12, citing Tr. at 112, ll. tablet. In addition, between 6:00 p.m. and midnight,
7-14 (Smyth), Jan. 12, 1998. Willis drank approximately six cans of beer, and took

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 13
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN50 FN53
more Talwin and Percodan before going to sleep. house.

FN50. Pet. at 40, citing Lipman Depo. at 17, ll. FN53. Pet. at 42, citing Trial Tr., vol. 19 at
18-19, Jun. 8, 1998. The levels of pain medica- 140, ll. 8-13 (Deputy Jackson).
tion that Willis took on June 9-10, 1986 were
not unusual for chronic back pain patients. Id. *12 Finally, Willis argues that there was no motive
at 20, ll. 1-15. to support the State's theory of the fire and that Willis
had no motive to set the fire. Willis argues that at no
Willis contends the drugs he took in the two days point in the investigation of the fire, the trial or the
before the fire would have affected his outward appear- post-conviction proceedings did the State produce evid-
ance in the time period immediately after the fire. Spe- ence of any motive. And Willis, who was forty-two
cifically, he claims the drugs would make him appear years old at the time of the crime, had never before been
unemotional and unexcited. Also, he claims the alcohol charged with a violent crime.
consumed would have contributed to his low affect and
FN51 D. Analysis of Willis's Innocence Claim
to the suppression of his coughing after the fire.
The state trial court rejected a finding of innocence
FN51. Id. at 25, ll. 9-27. in this case. The state trial court found that Willis
failed to produce sufficient evidence to corroborate the
The State asserted at trial that Willis's account of FN54
statement of Mr. Long, and thus found Mr.
the fire was not believable because Willis was not in- FN55
Long's confession inadmissible. At post-
jured. Two days after the fire, Willis did have a very conviction proceedings, the state trial court therefore
bad burn on his shoulder, but the State claimed the burn held that the testimony in the record does not support a
was not present the day of the fire and thus was not FN56
finding that Willis is innocent.
caused by the fire. During the state post-conviction
hearing, Willis put forth evidence that blistering does FN54. Ex Parte Willis, No. 27, 787-01 Find. of
not necessarily occur immediately as a result of thermal Fact and Conc. of Law at 6.
burning and thus the appearance of the burn on Willis
FN52 FN55. The state trial court does not cite any au-
two days after the fire was not unusual.
thority requiring that or explaining why the
FN52. Pet. at 40, citing Lipman Depo. at 77, ll. confession must be corroborated to be admiss-
1-7, Jun. 8, 1998. ible. However, under Texas law, an extrajudi-
cial confession of wrongdoing, standing alone,
One of the state investigators, Deputy Jackson, test- is not sufficient to support a conviction; other
ified at trial that Willis's account that he ran around the evidence must exist, demonstrating that a crime
outside of the house breaking windows in an effort to has in fact been committed. See Rocha v. State,
help the people still inside could not be truthful because 16 S.W.3d 1, 4 (Tex.Crim.App.2000).
glass was found only on the outside of the house. Willis
claims the windows to the Robinson house were a par- FN56. Ex Parte Willis, No. 27, 787-01 Find. of
ticular type that prevented the glass from falling into the Fact and Conc. of Law at 33.
house. Willis claims that the windows consisted of two
panels, a lower portion and an upper. When opened, he In Herrera v. Collins, the Supreme Court held that
claims, the lower portion slides above the upper portion, [c]laims of actual innocence based on newly dis-
creating two layers of glass. Willis claims the windows covered evidence have never been held to state a ground
were open the night of the fire and that when he broke for federal habeas relief absent an independent constitu-
the upper part of the window, the lower part, as a tional violation occurring in the underlying state crimin-
FN57
second layer, prevented the glass from falling inside the al proceeding. In Herrera, the Court did assume
for the sake of argument ... that a truly persuasive

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 14
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

demonstration of actual innocence made after trial tion occurs when a new rule of law places certain kinds
would render the execution of a defendant unconstitu- of primary, private individual conduct beyond the
FN58
tional. Since Herrera, the lower courts dispute power of the criminal law-making authority to pro-
FN63
whether federal habeas relief is available based on a scribe. The second exception occurs when the
showing of innocence without a constitutional error at new rule of law requires the observance of those pro-
trial. While the Ninth and Seventh Circuits held that cedures that are implicit in the concept of ordered
FN64
habeas relief is available based upon a post-conviction liberty.
FN59
showing of innocence alone, the Fifth Circuit re-
jected this rule and holds that newly discovered evid- FN61. 489 U.S. 288 (1989).
ence related to innocence is not sufficient grounds alone
FN60 FN62. See Williams, 529 U.S. at 380.
for habeas relief. Willis acknowledged that even if
this Court found innocence, relief would nevertheless be FN63. Teague, 489 U.S. at 307 (internal cita-
unavailable to him under the law of this Circuit. tions omitted).
FN57. 506 U.S. 390, 400 (1993). FN64. Id.
FN58. Id. at 417. If the Supreme Court were to find that an innocence
claim were cognizable in habeas, this Court has no
FN59. See Jackson v. Calderon, 211 F.3d 1148,
doubt that, for a petitioner who could make a showing
1164 (9th Cir.2000), cert denied, 531 U.S.
of actual innocence, the first Teague exception would
1072 (2001); Carriger v. Stewart, 132 F.3d FN65
apply, and thus Teague would not bar relief. But
463, 476 (9th Cir.1997) (en banc), cert denied,
under this Circuit's current jurisprudence, innocence
523 U.S. 1133 (1998); Milone v. Camp, 22
alone is not a sufficient basis for federal habeas relief.
F.3d 693, 699 (7th Cir.1994), cert denied, 513 FN66
While both parties' presentations to the Court in
U.S. 1076 (1995).
cross-motions for summary judgment raise strong reas-
FN60. Lucas v. Johnson, 132 F.3d 1069, 1074 on to be concerned that Willis may be actually innocent,
(5th Cir.1998) (holding that the existence under Herrera and Lucas, innocence is not a cognizable
merely of newly discovered evidence relevant claim in habeas; thus, it would be inappropriate for this
to the guilt of a state prisoner is not a ground Court to determine the issue. In any event, the determin-
for relief on federal habeas corpus.). See also ation is unnecessary because the Court must grant Wil-
Robinson v. Johnson, 151 F.3d 256, 267 (5th lis's writ on other grounds.
Cir.1998), cert denied, 526 U.S. 1100 (1999).
FN65. The Teague exceptions are not part of
The Fourth Circuit has likewise refused to re-
section 2254(d)'s deference provisions. The Su-
cognize an actual innocence claim alone. See
preme Court has not yet resolved the tension
Royal v. Taylor, 188 F.3d 239, 243 (4th
between Teague and section 2254 in that re-
Cir.1999).
gard.
The State did not address any of the factual allega-
FN66. Herrera v. Collins, 506 U.S. 390, 400
tions of innocence proffered by Willis. Instead, the
(1993); Dowthitt v.. Johnson, 230 F.3d 733,
State claims that because actual innocence is not a cog-
741-42 (5th Cir.2000), cert. denied, 532 U.S.
nizable claim in habeas, Willis's innocence claim is
915 (2001).
barred by the nonretroactivity rule of Teague v. Lane.
FN61
Teague prevents application of novel rules of law IV. Administration of Medically Inappropriate Anti-
FN62
to petitioners whose convictions are final. There psychotic Medications
are two exceptions to the Teague rule. The first excep- *13 During the evidentiary hearing on Willis's state

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 15
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

habeas petition, evidence and testimony were presented er, 494 U.S. 210, 222 (1990), was decided on
concerning his claim that the State's wrongful adminis- February 27, 1990, before Willis's conviction
tration of antipsychotic drugs denied Willis of due pro- became final. As explained in the text of this
cess and other constitutional rights. At the conclusion of opinion, Harper explicitly states that State ad-
the hearing, Judge Jones entered detailed findings of ministered antipsychotic drugs must be medic-
fact regarding the administration of the medication by ally appropriate. Furthermore, subsequent Su-
the State, the effect on Willis and the lack of any justi- preme Court cases-namely Riggins and United
fication for the medication. These findings were sum- States v. Sell, 539 U.S. 166 (2003)-state that
marized above. Judge Jones then entered conclusions of the rule of law emanated from Harper. In
law recommending relief be granted on the claim. Penry v. Lynaugh, 492 U .S. 302 (1989) (Penry
I ), the Supreme Court held that dicta in Jurek
Judge Jones held that the administration of anti- v. Texas, 428 U.S. 262 (1976), established law
psychotic medication to Willis during his trial denied for Teague purposes. Thus, the statements in
him the ability to assist in his own defense in violation Harper-that due process requires that state ad-
FN67
of his right to counsel, and prejudicially affected ministered antipsychotic drugs be medically
his demeanor at trial in violation of substantive due pro- appropriate-are sufficient for Teague purposes
FN68
cess rights. In addition, the trial court held that the in Willis's case, even if they are dicta.
State can only administer medication to a defendant in-
voluntarily if the standard articulated by the Supreme Judge Jones found that the administration of the
Court in Riggins is met: 1) administration of the drugs drugs to Willis was not medically appropriate, not es-
was medically appropriate and, considering less intrus- sential for the safety of Willis or others, and not neces-
ive alternatives, essential for the sake of [the defend- sary to accomplish an essential state policy. Further-
ant's] own safety or the safety of others; 2) administra- more, Judge Jones held a showing of prejudice was not
tion of the drugs was medically appropriate and that the required because under Riggins, there is a strong pos-
FN70
prosecution could not obtain an adjudication of [the sibility that trial defense was impaired.
defendant's] guilt or innocence by using less intrusive
means; or 3) that the administration of medication was FN70. Ex Parte Willis, No. 27, 787-01 Find. of
necessary to accomplish an essential state policy. Fact and Conc. of Law at 13, quoting Riggins,
FN69 504 U.S. at 138.

FN67. See Riggins v. Nevada, 504 U.S. 127, Judge Jones also found that the administration of
133, 142 (1992). antipsychotic medications to Willis violated Willis's
right to confront witnesses because a defendant's phys-
FN68. See id. at 131. ical presence and demeanor in the courtroom are essen-
FN71
tial to the exercise of his confrontation rights. The
FN69. Id. at 135-36, 138. The state trial court medication given to Willis left him unable to confer
based its analysis of this claim largely on Rig- with counsel and unable to exhibit any emotive re-
gins. The CCA denied the claim based on a pri- sponse to the testimony of adverse witnesses. Further-
or CCA opinion interpreting Riggins. In addi- more, Willis was prevented from reacting or responding
tion, both parties have extensively briefed Rig- to the proceedings and was not able to demonstrate
gins. Though not raised by the state trial court, FN72
sensitivity or compassion.
the CCA or either party, the Court notes that
Riggins was decided in 1992, two years after FN71. Id., citing Riggins, 504 U.S. at 142. See
Willis's conviction became final on direct ap- also Coy v. Iowa, 487 U.S. 1012, 1020 (1988).
peal, on October 9, 1990. However, the Su-
preme Court's decision in Washington v. Harp- FN72. Ex Parte Willis, No. 27, 787-01 Find. of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 16
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

Fact and Conc. of Law at 13. at 2 (Tex.Crim.App.2000), citing Ex Parte

Thomas, 906 S.W.2d 22 (Tex.Crim.App.1995).
Judge Jones found the administration of the medic-
ation also violated a number of other constitutional FN75. Though the CCA addressed Willis's
rights. First, the medicine prevented Willis from assist- medication claim on the merits, the CCA did
ing in his own defense and denied him his Sixth not address the lack of medical justification for
Amendment right to the effective assistance of counsel. the antipsychotic drugs the State administered
Willis was unable to communicate with counsel or to Willis. However, the state trial court made a
make tactical decisions during trial. Thus the adminis- finding of fact as to the lack of medical justific-
tration of the medication was an actual or constructive ation, and Willis raised the lack of medical jus-
denial of the right to counsel by the State and not sub- tification on appeal to the CCA as part of his
ject to a prejudice showing. Second, the medication of claim for relief. Thus, the CCA's rejection of
Willis and his resulting demeanor effectively forced Willis's medication claim is an implicit finding
Willis to testify against himself in violation of the Fifth that the lack of medical justification is not a
Amendment. This is especially so because the prosecu- ground for relief.
tion used Willis's demeanor as evidence of his guilt. Fi-
nally, Judge Jones found the administration of the med- As explained below, the CCA erred on both
ication violated Willis's right to an individualized capit- grounds. First, the State cannot administer antipsychotic
FN73 drugs unless medically appropriate according to Su-
al sentencing determination.
preme Court holdings, and thus the CCA's denial of re-
FN73. Id. at 14-16. lief when Willis was medicated with antipsychotic
drugs without medical justification is contrary to clearly
*14 The Court of Criminal Appeals overruled the established federal law. Second, the CCA's determina-
trial court's recommended relief on this claim in one tion that an objection is a necessary condition of invol-
paragraph. Citing a Texas case, the CCA held that be- untariness is contrary to clearly established federal law
cause there was no motion to terminate medication or regarding waiver of constitutional rights. In this case,
an objection to the medication in the record, Willis has no evidence exists that either Willis or defense counsel
FN74
not demonstrated his treatment was involuntary. knew of the existence or nature of the medication.
The CCA based its ruling on a legal determination that a
showing of involuntariness requires an objection in the A. Administration of Medically Inappropriate Drugs
record. Because the CCA's overruling of the trial court After the state habeas hearing, the trial court found
was not inconsistent with the trial court's findings, but the State administered the antipsychotic drugs to Willis
FN76
instead, a determination that the facts did not warrant without any medical need. This determination is
relief under the legal standard, this Court must defer to supported by the record. Three experts testified during
the state trial court's findings of fact. Thus, the issues the state habeas hearing that they were unable to find
before this Court are: 1) whether the CCA's holding that any evidence of psychosis or other mental disorder in
FN77
an objection is a necessary condition for a finding of in- Willis's medical or behavioral history. Further-
voluntariness is contrary to, or an unreasonable applica- more, none of the records from the Pecos County Jail
tion of, clearly established federal law and 2) whether indicate that Willis was suffering from a psychotic dis-
FN78
the CCA's implicit determination that the State can ad- order or exhibiting symptoms of psychosis. Nu-
minister antipsychotic medication to pre-trial inmates merous medical intake forms for Willis's admission to
with no established medical need is contrary to, or an the Pecos County Jail state that Willis had never been
FN79
unreasonable application of, clearly established federal treated for mental illness. One of the forms was
FN75
law. filled out after Willis received antipsychotic medication
in the Pecos County Jail. Disciplinary records from the
FN74. Ex Parte Willis, No. 27, 787-01, Order Pecos County Jail state that Willis is negative for a his-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 17
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN80
tory of mental illness. The report of the psycholo- 227).
gical exam administered to Willis at the time of trial
stated there was no evidence that Willis was psychotic. In upholding a state procedure for involuntary med-
FN81 ication of antipsychotic drugs in Washington v. Harper,
Additionally, Willis's eleven-year records from
TDC do not contain any evidence of a psychotic dis- the Supreme Court was careful to recognize that the
FN82 state procedure required that the administration of med-
order. FN85
ication be medically appropriate. Because the state
FN76. Ex Parte Willis, No. 27, 787-01 Find. of procedure at issue in Harper recognized the petitioner's
Fact and Conc. of Law at 11. medical interests, it met the requirements of the Due
FN86
Process Clause. In a lengthy footnote, the Court
FN77. See e.g., Crowder Dep.; Lipman Dep.; detailed that it would not adopt the State's procedure if
Cunningham Dep. the procedure did not require a finding of medical ap-
propriateness before antipsychotic medication can be in-
FN78. See e.g., Tr. at 267, ll. 1-14 FN87
voluntarily administered.
(Cunningham).
FN85. 494 U.S. at 223, n. 8.
FN79. Def. E.H. Ex. 30.
FN86. Id. at 223.
FN80. Def. E.H. Ex. 29 at 93, 117, 123, 129,
142; Crowder Dep., ll. 16-21. FN87. Id. at 223, n. 8. See also id. at 227
(holding that the Due Process Clause permits
FN81. Tr. at 177, ll. 2-14 (Wright).
the State to treat a prison inmate who has a
FN82. Lipman Dep. at 44, ll. 16; Crowder Dep. serious mental illness with antipsychotic drugs
at 42, ll. 18-23 (We never see any psychosis against his will, if the inmate is dangerous to
appear in his extensive TDC records.); himself or others and the treatment is in the in-
Crowder Dep. at 51, ll. 16-21. mate's medical interest. ) (emphasis added).
[W]e hold that the regulation before us is per-
*15 A significant liberty interest exists in avoiding missible under the Constitution. It is an accom-
unwanted administration of antipsychotic drugs under modation between an inmate's liberty interest
the Due Process Clause of the Fourteenth Amendment. ... and the State's interests in providing appro-
FN83
But, due process will allow a mentally ill inmate priate medical treatment.... Id. at 236
to be treated involuntarily with antipsychotic drugs (emphasis added). The dissent in Harper ex-
where there is a determination that ... the treatment is in plains the majority's decision as follows:
FN84
the inmate's medical interest. [A]lthough the Court does not find, as Harper
urges, an absolute liberty interest of a compet-
FN83. Harper, 494 U.S. at 222; Parham v. ent person to refuse psychotropic drugs, it does
J.R., 442 U.S. 584, 600-601 (1979). See also recognize that the substantive protections of the
Youngberg v. Romeo, 457 U.S. 307, 316 (1982) Due Process Clause limit the forced adminis-
(core liberty protected by due process, freedom tration of psychotropic drugs to all but those
from bodily restraint, survives criminal convic- inmates whose medical interests would be ad-
tion, incarceration and involuntary commit- vanced by such treatment. Id. at 243 (Stevens,
ment). J., dissenting).

FN84. Riggins, 504 U.S. at 135 (internal quota- The rule of Harper was reiterated in Riggins where
tions and citations omitted) (stating the Su- a state involuntary medication procedure was found in-
preme Court's holding in Harper, 494 U.S. at FN88
adequate. Under Harper, forcing antipsychotic

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 18
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

drugs on a convicted prisoner is impermissible absent a FN94. Id. at 177.

finding of overriding justification and a determination
FN89 FN95. Id. at 180.
of medical appropriateness. The Riggins Court
noted that a pretrial detainee-the petitioner in Riggins-
FN96. Id. at 181. [T]he court must conclude
enjoyed as much constitutional protection as the con-
FN90 that involuntary medication will significantly
victed prisoner at issue in Harper.
further those concomitant state interests. It
FN88. 504 U.S. 127 (1992). must find that administration of the drugs is
substantially likely to render the defendant
FN89. Id. at 135 (emphasis added) (internal competent to stand trial. At the same time, it
quotations and citations omitted). must find that administration of the drugs is
substantially unlikely to have side effects that
FN90. Id., citing Bell v. Wolfish, 441 U.S. 520, will interfere significantly with the defendant's
545 (1979). ability to assist counsel in conducting a trial
defense, thereby rendering the trial unfair. Id.,
Applying the rule of Harper to the procedures em-
citing Riggins, 504 U.S. 142-45 (emphasis in
ployed by the State, the Riggins Court held that the
original).
State certainly would have satisfied due process if the
prosecution had demonstrated, and the District Court FN97. Id. ([t]he court must find that any al-
had found, that treatment with antipsychotic medication ternative, less intrusive treatments are unlikely
was medically appropriate and, considering less intrus- to achieve substantially the same results. And
ive alternatives, essential for the sake of Riggins' own the court must consider less intrusive means for
FN91
safety or the safety of others. Alternatively, the administering the drugs.).
State might have been able to justify medically appro-
priate, involuntary treatment with the drug by establish- FN98. Id.
ing that it could not obtain an adjudication of Riggins'
FN92 The State argues that Harper and Riggins are not on
guilt or innocence by using less intrusive means.
point because both cases addressed situations in which a
FN99
FN91. Id. (emphasis added). formal objection was made to the medication. The
argument is inapposite. The Court in both Harper and
FN92. Id. (emphasis added). Riggins assumed the medication was medically appro-
FN100
priate. Thus, assuming the medication is medic-
The rule of Harper was reaffirmed again in United
FN93 ally appropriate, the issue in both cases became what
States v. Sell. There, the Supreme Court ad-
procedures must the State go through in order to medic-
dressed whether a State may forcibly administer anti-
ate an inmate against his will. In this case, on this re-
psychotic drugs to a criminal defendant in order to
FN94 cord, no such assumption can be made. Indeed, the re-
render him competent to stand trial. The Court
cord does not support that assumption, and the state
held a four-part test must be met to involuntarily medic-
court found that in fact the medication was not medic-
ate a criminal defendant: 1) important governmental in-
FN95 ally appropriate. Harper followed by Riggins and Sell
terests are at stake; 2) involuntary medication will
FN96 make clear that medical appropriateness is always a
significantly further those interests; 3) involun-
condition precedent to the involuntary administration of
tary medication is necessary to further those interests;
FN97 antipsychotic drugs to inmates.
and 4) administration of the drugs is medically
appropriate, i.e., in the patient's best medical interest in FN99. The State's motion for summary judg-
FN98
light of his medical condition. ment was written before the Supreme Court's
decision in Sell, 539 U.S. 166.
FN93. 539 U.S. 166 (2003).

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 19
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN100. Harper, 494 U.S. at 223, n. 8 (... we FN103. 256 F.3d 257, 259 (5th Cir.2001).
will not assume that physicians will prescribe
these drugs for reasons unrelated to the medical FN104. 947 F.Supp. 1021, 1084
needs of the patients; indeed, the ethics of the (W.D.Tex.1996).
medical profession are to the contrary.); Rig-
FN105. Id.
gins, 504 U.S. at 133 ( ... we presume that ad-
ministration of [antipsychotic drugs] was med- In all the cases uncovered by the Court in which an-
ically appropriate.). tipsychotic medication was found to be voluntary, there
was evidence in the record that the recipient knew of
*16 Because Supreme Court precedents are unequi- FN106
the medication and often requested it. There is no
vocal that antipsychotic medication administered by the
such evidence in the record for Willis's case. Also, the
State must be medically appropriate, the CCA's rejec-
antipsychotic medication was given without medical
tion of Willis's due process claim, when the record is
need, strongly indicating that it was not just given in-
clear that Willis was medicated with no medical need, is
FN101 voluntarily but also given without Willis's knowledge.
contrary to clearly established federal law.
The Court finds it unlikely that a reasonable and com-
FN101. See 28 U.S.C. 2254(d). petent person would voluntarily take high doses of un-
necessary antipsychotic drugs without evident medical
FN107
B. Whether a Showing of Involuntariness Requires an need.
Objection
The Court now addresses whether the CCA's hold- FN106. See e.g., Ex Parte Thomas, 906 S.W.2d
ing that an objection is a necessary condition for a find- 22; Fearance v. Scott, 56 F.3d 633 (5th
ing of involuntariness is contrary to, or an unreasonable Cir.1995), cert. denied, 515 U.S. 1153 (1995);
application of, clearly established federal law. The state Adanandus v. Johnson, 947 F.Supp. 1021
trial court made a factual finding that Willis did not (W.D.Tex.1996).
FN102
consent to the medication. This finding was not
FN107. In stating that a showing of involuntar-
rejected by the Court of Criminal Appeals. Instead, the
iness can only be made through an objection,
CCA stated that because there was no objection on the
the CCA cited only one case, its own decision
record, Willis could not make a legal showing of invol-
in Ex Parte Thomas. There, the defendant ini-
untariness.
tially requested the medication and later
FN102. Ex Parte Willis, No. 27, 787-01 Find. claimed to object to it. Defense counsel in that
of Fact and Conc. of Law at 9. case was aware of the medication. Thus, the
facts surrounding the voluntariness of the med-
The State argues that the medication administered ication in Ex Parte Thomas are quite different
in both Harper and Riggins was determined involuntary than the facts surrounding involuntariness in
because the inmate had objected to it on the record. But the instant case.
in neither of those cases did the Court require a recor-
ded objection as a necessary element to a showing of in- Though not specifically found by the state trial
voluntariness. The State also cites Richardson v. John- court in post-conviction findings, there is evidence in
FN103 FN104 the record that Willis was not aware he was taking anti-
son, and Adanandus v. Johnson, but FN108
neither of those cases included a finding of non-consent. psychotic medication. Willis was receiving sev-
Furtermore, in Adanandus, there was no finding that the eral medications each day for back pain. The State notes
FN105 that when Willis was given the medication, he placed
petitioner had actually been medicated. Thus,
neither case is instructive. his initials on the medication log sheet. The record
though does not demonstrate that Willis knew the ini-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 20
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

tials indicated anything other than receipt of his back FN112. Boykin v. Alabama, 395 U.S. 238, 242
pain medication, and because he expected to receive the (1969) (the Court noted that several constitu-
back medication, Willis would not have had reason to tional rights are involved in a waiver that ac-
question the medication. Because the State medicated companies a guilty plea).
Willis with antipsychotic drugs in the absence of any
FN109 FN113. Barker v. Wingo, 407 U.S. 514, 524
medical need, Willis would have had no reason
to suspect the drugs were antipsychotics. The initials do (1972).
not suggest Willis understood what medication he was
FN110 FN114. Id. at 526 (applying the standard used
receiving.
in Carnely, 369 U.S. at 516 and Boykin, 395
FN108. See Pet. at 78-81. U.S. at 242).

FN109. Ex Parte Willis, No. 27, 787-01 Find. Thus, the ordinary rule is that a court cannot infer a
of Fact and Conc. of Law at 11-12. waiver of a constitutional right from the failure to ob-
FN115
ject. In light of the constitutional rights implic-
FN110. Also, Willis's Pecos County Jail medic- ated when a defendant is medicated with antipsychotic
FN116
al records did not meet statutory requirements. drugs, there is no reason to deviate from this es-
See Pet. at 81, n. 37; 37 TEX. ADMIN. CODE tablished standard for waiver, nor is any such explana-
273.4. See also Lipman Dep. at 38, ll. 16-39, tion given by the CCA. Because the CCA impermissibly
l. 3 (I can find no pharmacologically appropri- deemed the medication voluntary from a silent record,
FN117
ate basis for [the] prescription of the anti- a determination that Willis's medication was
psychotic medication to Willis in the Pecos voluntary is an unreasonable application of clearly es-
County Jail records or other supporting docu- tablished Supreme Court precedents on waivers of con-
FN118
ments.). stitutional rights.

*17 While the Supreme Court has not discussed the FN115. Id. at 525 (... presuming waiver of a
standard for involuntariness specifically in the context fundamental right from inaction, is inconsistent
of involuntary medication, the Court has developed a with this Court's pronouncements on waiver of
standard for involuntariness used generally in a number constitutional rights.).
of other contexts. In the context of right to counsel, the
Supreme Court held that [p]resuming waiver from a si- FN116. See Riggins, 504 U.S. at 142 (Kennedy,
lent record is impermissible. The record must show, or J. concurring) (noting that side effects of anti-
there must be an allegation and evidence which show, psychotic drugs can compromise the right of a
that an accused was offered counsel but intelligently criminal defendant to receive a fair trial. The
and understandably rejected the offer. Anything less is drugs can prejudice the accused in two princip-
FN111 al ways: (1) by altering his demeanor in a man-
not waiver. The Supreme Court applied this
FN112 ner that will prejudice his reactions and
standard for waiver to the guilty plea context.
Also, the Supreme Court rejected state laws that denied presentation in the courtroom, and (2) by ren-
the application of the right to speedy trial unless the de- dering him unable or unwilling to assist coun-
FN113 sel. Id. Justice Kennedy also stated that med-
fendant demanded trial, and instead the Court ap-
plied the same standard articulate above to the analysis ication with antipsychotic drugs can effect a
FN114 defendant's constitutional rights, his right to
of a waiver of the right to a speedy trial.
testify on his own behalf and his right to coun-
FN111. Carnely v. Cochran, 369 U.S. 506, 516 sel. Id. at 142, 144.).
(1962).
FN117. The trial court determined that the fail-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 21
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

ure to object did not constitute consent. Harper creates an unacceptable risk of trial er-
ror and entitles the defendant to automatic va-
FN118. 28 U.S.C. 2254(d). catur of his conviction.).

The State then argues that even if the medication FN120. Riggins, 504 U.S. at 138. The State ar-
were involuntarily administered, Willis has not shown gues that the Riggins presumption of prejudice
he was prejudiced because he has not demonstrated he only applies on direct review, not in post-
was harmed in any manner. However, in Riggins, the conviction proceedings. The State provides no
Supreme Court held that once it has been established authority to support this argument. Further-
that a defendant was involuntarily medicated during a more, presumptions of prejudice have been
criminal trial without the proper due process considera- used in other post-conviction contexts. See
tions, because of the substantial probability of trial Burdine v. Johnson, 262 F.3d 336, 348-50 (5th
FN119 FN120
prejudice, prejudice is presumed. Addi- Cir.2001) (en banc), cert. denied, Cockrell v.
tionally, the Supreme Court's decisions in both Riggins Burdine, 535 U.S. 1120 (2002). Also, this part
and Harper recognized the severe effects of anti- of the State's argument seems to challenge the
psychotic medications and the potentially debilitating state trial court's findings of fact regarding the
effects of such medication on an accused's constitution- effects of the medication on Willis. However,
FN121
al trial rights. The Supreme Court noted that it is the State does not mention that the state trial
possible for side effects to impact outward appearance, court made findings of fact regarding this issue,
the content of testimony, the ability to follow the pro- nor argue that those findings are unreasonable
ceedings, the substance of communication with counsel, in light of the evidence presented. See 28
FN122
and comprehension at trial. Nevertheless, it is U.S.C. 2254(e)(1).
clear from the state trial court's findings of fact that
Willis was actually prejudiced, both because of the ef- FN121. Harper, 494 U.S. at 229-30
fect of the medication on Willis's demeanor and because (identifying the serious, even fatal, side ef-
the prosecution used Willis's demeanor as evidence of fects of antipsychotic drugs). See also Rig-
FN123
guilt and future dangerousness. As to the effect gins, 504 U.S. at 134; Sell, 539 U.S. at 185-86
on Willis's demeanor, the state court found Willis ex- (Whether a particular drug will tend to sedate a
hibited flat or little facial expression, inexpressiveness, defendant, interfere with communication with
rigidity of the facial muscles, a fixed gaze, drowsiness, counsel, prevent rapid reaction to trial develop-
confusion and diminished ability to communicate. Wil- ments, or diminish the ability to express emo-
lis's demeanor was markedly different at the post- tions are matters important to determinating the
conviction hearing, when the antipsychotic drugs were permissibility of medication).
FN124
no longer being given. As to the the prosecution's
use of Willis's demeanor as evidence of guilt and future FN122. Riggins, 504 U.S. at 137.
dangerousness, the trial court found the State asked the
FN123. Ex parte Willis, No. 27, 787-01 Find.
jury to infer guilt and propensity for future dangerous-
FN125 of Fact and Conc. of Law at 10-11.
ness from Willis's lack of feeling or emotion.
Therefore, the Court finds that Willis was actually pre- FN124. Ex Parte Willis, No. 27, 787-01 Find.
judiced by the State's administration of the antipsychot- of Fact and Conc. of Law at 10.
ic drugs.
FN125. Id. at 11.
FN119. Riggins, 504 U.S. at 138. See also Sell,
539 U.S. at 189 (Scalia, J. dissenting) (the *18 The State also argues that even if the medica-
Riggins Court held that forced medication of a tion were involuntary and harmful, it was medically ne-
criminal defendant that fails to comply with cessary. As discussed above, the state trial court made

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 22
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

detailed findings of fact that the medication of Willis tablish a Brady claim, a petitioner must demonstrate
was without medical need and those findings are prop- that 1) the prosecution suppressed or withheld evidence
erly before this Court. To the extent that the State chal- 2) favorable to the defense and 3) material to guilt or
FN131
lenges the finding that the administration of medication punishment.
lacked necessity, the State fails to engage in the requis-
FN126 FN129. Brady v. Maryland, 373 U.S. 83, 87
ite analysis outlined in the AEDPA. The State
has not rebutted the presumption of correctness afforded (1963).
to state court factual findings by clear and convincing
FN130. United States v. Bagley, 473 U.S. 667,
evidence, and a review of the record reveals that the
682 (1985).
factual findings of the state court are reasonable in light
FN127
of the evidence presented. FN131. East v. Johnson, 123 F.3d 235, 237
(5th Cir.1997).
FN126. See 28 U.S.C. 2254(e)(1).
Evidence is material if there is a reasonable prob-
FN127. See 28 U.S.C. 2254(d)(2).
ability that, had the evidence been disclosed to the de-
For the reasons provided above, the medication of fense, the result of the proceeding would have been dif-
FN132
Willis during trial violated his right to due process, both ferent. Four aspects of materiality govern the
FN133
because it was without medical need and also because it inquiry. First, a petitioner need not prove by a
was involuntary. Willis is entitled to relief on the claim preponderance that disclosure of the suppressed evid-
because the CCA's denial of the claim was contrary to, ence would have resulted ultimately in a sentence less
FN134
and an unreasonable application of, clearly established than death. The question is not whether the de-
FN128 fendant would more likely than not have received a dif-
federal law.
ferent verdict with the evidence, but whether in its ab-
FN128. Willis argues that the State's adminis- sence he received a fair trial, understood as a trial res-
tration of the medication violated a number of ulting in a verdict worthy of confidence. A reasonable
other constitutional rights: right to confront probability of a different result is accordingly shown
witnesses, remain free from self-incrimination, when the government's evidentiary suppression under-
FN135
effective assistance of counsel, and an indi- mines confidence in the outcome of the trial.
vidualized sentencing determination. These ar-
guments were raised to the state trial court and FN132. Kyles v. Whitley, 514 U.S. 419, 433
to the CCA. The trial court found that the ad- (1995).
ministration of medication violated all these
FN133. See id. at 434.
rights. The CCA did not address any of these
additional constitutional claims. Because this FN134. Id.
Court has granted relief on due process
grounds, the Court declines to address the other FN135. Id. (internal citations and quotations
bases for relief. omitted).

V. Prosecutorial Suppression of Evidence Second, the materiality analysis is not a sufficiency

FN136
Prosecutorial suppression of evidence that is favor- of the evidence test.
able to an accused violates due process where the evid-
ence is material either to guilt or punishment, irrespect- FN136. Id.
ive of the good faith or bad faith of the prosecution.
FN129 A defendant need not demonstrate that after discount-
A defendant need not request such evidence to
FN130 ing the inculpatory evidence in light of the undis-
trigger the prosecutor's duty to disclose. To es-
closed evidence, there would not have been enough

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 23
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

left to convict....One does not show a Brady violation whether evidence is favorable.
by demonstrating that some of the inculpatory evid-
ence should have been excluded, but by showing that FN141. Ex Parte Willis, No. 27, 787-01, Order
the favorable evidence could reasonably be taken to at 4.
put the whole case in such a different light as to un-
FN137 Willis argues that the CCA unreasonably applied
dermine confidence in the verdict.
Brady in finding the Wright report was not favorable.
FN137. Id. at 435. The Wright report contained two hypothetical scenarios,
differing on the issue of the nature of the evidence pro-
*19 Third, harmless error analysis does not apply. duced at trial. One of the scenarios was favorable and
FN138
And, fourth, materiality is assessed in terms of one was not. The favorable scenario was: if sworn evid-
all suppressed evidence considered collectively, not ence indicates that his behavior until the time of the cur-
FN139
item by item. rent alleged offense was no worse than previous behavi-
ors, we could probably say with safety that the current
FN138. Id. alleged behavior was an isolated event which he prob-
FN142
ably will not repeat. The other scenario was as
FN139. Id. at 436.
follows:
Judge Jones found that the State violated Brady by
FN142. Wright Report at 6. See Pet. at 166.
affirmatively or negligently failing to turn over the
Wright report to the defense. The CCA overturned Recent years may have seen more and more irre-
Judge Jones, stating that the Wright report was not fa- sponsibility or increasingly violent behaviors toward
vorable or material. The CCA did not question the trial others. If testimony reflects this to a significant de-
court's determination that the Wright report had been gree, we would certainly seem correct in assessing
suppressed, nor did it reject the trial court's findings of that he has passed through a behavioral door and that
fact. The CCA based its ruling on a determination that he will continue to commit vicious, violent type beha-
the facts, as found by the trial court, did not meet the viors. A deterioration over the years would certainly
standard of favorability or materiality. Because the seem to suggest that he would represent a continued
CCA's overruling of the trial court was not inconsistent FN143
threat to society.
with the trial court's factual findings, this Court must
FN140
defer to those trial court findings of fact. FN143. Id.

FN140. See Craker, 756 F.2d at 1213-14; West- The State presented no evidence during the penalty
ley, 83 F.3d at 721 n. 2. phase of the trial that would have triggered the second
scenario. The only prior criminal history presented a tri-
The CCA determined the Wright report was not fa- FN144
al involved non-violent offenses.
vorable for two reasons: first, because at the evidentiary
hearing Wright testified that he was unable to gather FN144. Ex Parte Willis, No. 27, 787-01 Find.
sufficient information during the examination of Willis of Fact and Conc. of Law at 6.
to make a future dangerousness determination, and
second, because the conclusions in the report were In support of his argument that the CCA erred in
hypotheticals. Dr. Wright's report states that the data holding the Wright report to be not favorable, Willis re-
I was able to collect concerning Willis was [sic] insuffi- lies upon a Fifth Circuit case, holding that evidence
cient for determining whether he would pose a continu- meets the Brady standard of materiality, if it is both in-
FN141 FN145
ing threat to society. The CCA offered no au- culpatory and exculpatory. Willis also argues
thority for the proposition that a report with a condition- that the CCA's determination on favorability was un-
al conclusion fails the Brady standard for determining reasonable because it ignores the ongoing nature of the

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 24
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

State's obligations under Brady. The State's obligation ated Willis's due process right. As offered by the State
to produce Brady material continues throughout trial. in its Motion for Summary Judgment, Dr. Wright was
FN146
Willis argues that the Wright report was clearly committed to his opinion that Willis would not pose a
favorable and should have been disclosed because the future danger when he testified during the state hearing
FN150
hypothetical scenarios in the report were conditioned on in 1998. Furthermore, Dr. Wright visited with
the evidence presented at trial and that evidence did not the District Attorney about his examiniation of Willis
FN147
ultimately include other violent behaviors. and said: I didn't think this was a good death penalty
FN151
case. Dr. Wright reiterated his belief that Wil-
FN145. See Sellers v. Estelle, 651 F.2d 1074, lis's case was not a good death penalty case at the state
1077 (5th Cir.1981), cert. denied, 455 U.S. 927 FN152
habeas hearing.
(1982).
FN150. Resp.'s Mot. Summ. J. at 76.
FN146. Jackson v. Johnson, 194 F.3d 641, 649
n. 18 (5th Cir.1999), cert. denied, 529 U.S. FN151. Id. at 77.
1027 (2000), citing United States v. Miranne,
688 F.2d 980 (5th Cir.1982), cert. denied, 459 FN152. Id. (noting that Dr. Wright answered
U.S. 1109 (1983). yes at the state habeas hearing when asked
whether this was not a good death penalty
FN147. See Ex Parte Willis, No. 27, 787-01 case).
Find. of Fact and Conc. of Law at 4; Ex Parte
Willis, No. 27, 787-01 Order at 4 (stating that The State responds that the Wright report was not
the testimony presented during the penalty favorable because it contained negative information
phase was relatively brief with two law en- about Willis's drinking habits and convictions for ob-
forcement officers providing reputation testi- scene phone calls and drunk driving. The report con-
mony.). tained information that Willis admitted to drinking after
age seventeen, that Willis was accused of indecent ex-
*20 Willis also suggests the Wright report was fa- posure at age seventeen and several times later, that
vorable because, even if the report itself were incon- Willis was convicted twice for obscene phone calls, and
clusive, disclosure of the report would have led the de- that Willis was convicted four or five times for driving
fense to Dr. Wright, whose testimony would have been while intoxicated. Willis's convictions for driving while
favorable. In determining whether evidence is material intoxicated and a felony conviction for immoral con-
FN153
under Brady, the effect of the suppression of the evid- duct were already before the jury. Thus, the
ence on the preparation or presentation of the defense only additional negative information contained in the
FN148
case is relevant. The suppression of inadmissible report was the indecent exposure accusations. Consider-
evidence is material if the disclosure of the inadmissible ing that the report led to the highly favorable testimony
evidence might have led defense counsel to admissible of a state-sanctioned medical expert, who determined
FN149
evidence. that Willis was not a future danger, the Court finds the
overall character of the report is favorable, even though
FN148. Bagley, 473 U.S. at 683. it also contained unfavorable information. The jury had
to answer a specific question on future dangerousness to
FN149. Sellers, 651 F.2d at 1077 n. 6; Spence
impose the death penalty, and the report would have fa-
v. Johnson, 80 F.3d 989, 1005 n. 14 (5th
vorably addressed this issue. The Wright report's overall
Cir.1996), cert. denied, 519 U.S. 1012 (1996).
character is favorable.
With these guidelines in mind, the Court finds that
FN153. See Willis, 785 S.W.2d at 387.
Wright's testimony would have been favorable and the
prosecution's failure to disclose the Wright report viol-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 25
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

The CCA also found that, even if the report were the Wright report is contrary to clearly established fed-
favorable, it was not material because no expert testi- eral law, even if the CCA did not exclusively rely on
mony was presented during the penalty phase on the is- that test. In Williams v. Taylor, the Supreme Court held
sue of future dangerousness and because the penalty that, because it was impossible to tell how much the
phase was relatively brief, with two law enforcement state court's use of the wrong standard affected its final
officers providing reputation testimony. Because a chal- determination, the state's determination was contrary to
FN159
lenge to the sufficiency of the evidence on future dan- law.
gerousness was raised and rejected on direct appeal, the
CCA found that in view of the evidence presented at FN159. Williams, 529 U.S. at 414. The State
trial, it is exceedingly difficult to conclude applicant has argued in Williams that even though the Virgin-
demonstrated that there is a reasonable probability the ia Supreme Court relied on the incorrect stand-
jury would have returned a negative answer on the fu- ard, the analysis was not contrary to law be-
ture dangerousness finding if they had been aware of cause the Virginia court had also cited Strick-
FN154 land. Brief of Resp. in Williams v. Taylor, N
Wright's report. The CCA found Dr. Wright's
FN155 98-8384, 1999 WL 642451 at *37-38.
report inconclusive and found that Willis had
made no showing that the verdict is unworthy of con-
FN156 Similarly, the CCA's use of the incorrect legal
fidence.
standard is particularly problematic in this case because
FN154. Ex Parte Willis, No. 27, 787-01 Order the two other factors the CCA used to judge materiality
at 4. were also questionably applied. In holding that the re-
port was not material, the other factors considered by
FN155. Id. the CCA were 1) no expert testimony was presented at
trial on the issue of future dangerousness and 2) the
FN156. Id., citing Kyles, 514 U.S. at 433-35. punishment phase was relatively brief with two law en-
forcement officers providing reputation testimony.
*21 Willis argues that the CCA's conclusion on ma- FN160
The materiality standard depends almost en-
teriality should be rejected because it was contrary to
tirely on the value of the evidence relative to the other
clearly established law. This Court agrees. The CCA's FN161
evidence mustered by the State. Thus, the fact
finding that the Wright report failed to meet the materi-
that the evidence admitted at the penalty phase was lim-
ality standard was erroneous because it took into ac-
ited-devoid of any expert testimony and consisting
count the sufficiency of the evidence, in direct contrast
FN157 solely of two witnesses, two Pecos County law enforce-
to Kyles v. Whitley. There, the Supreme Court
ment officers who provided conclusory and unsubstanti-
explicitly stated that the materiality analysis under
FN158 ated descriptions of Willis's reputation in unspecified
Brady is not a sufficiency of the evidence test.
communities-supports, rather than undermines, a find-
FN157. 514 U.S. at 434-45. ing of materiality.

FN158. Id. See also Williams, 529 U.S. at 414 FN160. Ex Parte Willis, No. 27, 787-01 Order
(O'Connor, J., concurring) (recognizing that the at 4.
Virginia Supreme Court also applied the appro-
FN161. Spence, 80 F.3d at 995. See also
priate Strickland standard); East, 123 F.3d at
United States v. Agurs, 427 U.S. 97, 112
239 (The Supreme Court has warned that the
(1976).
Brady materiality analysis is not a sufficiency
of evidence test.). The State argues that the report was not suppressed
because defense counsel should have obtained it them-
Willis also argues that the CCA's use of the suffi-
selves and did not exercise due diligence in attempting
ciency of the evidence test to reject the materiality of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 26
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

to acquire the report. To establish a Brady violation, a available through due diligence of defense counsel.
petitioner must show that the information allegedly
withheld was not available through due diligence. FN164. Pet.'s Reply at 58, citing Blank Aff.,
FN162 Ex. 8, 9.
In support of its argument on this point, the
State argues facts expressly rejected by the state trial
FN165. Ex Parte Willis, No. 27, 787-01 Find.
court. Under section 2254(e)(1), state court findings of
of Fact and Conc. of Law at 4.
fact are presumed to be correct, and the party rebutting
the presumption of correctness must do so by clear and FN166. Powell v. Texas, 492 U.S. 680, 685
FN163
convincing evidence. The State does not claim (1989); Satterwhite v. Texas, 486 U.S. 249,
the state trial court's factual findings should not be pre- 255-56 (1988).
sumed correct. Moreover, the state trial court's finding
that the report had been suppressed under Brady was FN167. Strickler v. Greene, 527 U.S. 263,
not rejected by the CCA. 283-84, 288 (1993); Banks v. Dretke, 124 S.Ct.
1256, 1273 (2004) (petitioner cannot be faulted
FN162. United States v. Mmahat, 106 F.3d 89, for relying on State's representations).
94 (5th Cir.1997).
FN168. Defense Attorney Woolard testified
FN163. Pondexter, 346 F.3d at 146. See also that DeHart did not receive the report. Dr.
Burden v. Zant, 498 U.S. 433, 436 (1991) (per Wright was not contacted by DeHart. Dr.
curiam) (finding that presumption of correct- Wright did not forward a copy of the report to
ness of state court fact findings applies when DeHart. The testimony eliminates the possibil-
factual determination supports petitioner as ity that the State gave DeHart a copy of the re-
well as when factual determination supports the port because Prosecutor Johnson claims he did
State); Valdez v. Cockrell, 274 F.3d 941, 947 not know the Wright report existed.
(5th Cir.2001).
*22 The Court finds that the Wright report was sup-
Nonetheless, for the following reasons, this Court pressed and was both favorable and material under
finds that the state trial court's findings of fact are sup- clearly established law. Moreover, the disclosure of the
ported by the record. First, prior to trial, defense coun- report would have led defense counsel to Dr. Wright's
sel successfully moved for disclosure of all evidence favorable testimony. That additional benefit to defense
FN164
relevant to mitigation or exoneration of Willis. counsel further supports a finding that the report is both
Second, although defense counsel was aware of psycho- FN169
favorable and material. The Wright report
logical evaluation for the purpose of determining com- presented an opinion by a qualified mental health ex-
petency, counsel was not told and the prosecution did FN170
pert, approved and hired by the State, who be-
not reveal that an assessment of Willis's future danger- lieved Willis was not a good candidate for the death
FN165
ousness had also been conducted. Defense coun- penalty and who would have testified that Willis was
sel must have actual notice that a psychological examin- not a future danger. Considering the lean evidence the
ation will encompass the issue of future dangerousness. State presented at the penalty phase, had the jury been
FN166
Considering that the State was obliged to inform aware of Dr. Wright's conclusions, there is a reasonable
defense counsel of the scope of the evaluation, defense probability that at least one juror would have answered
counsel did not fail to meet the standard of due dili- FN171
no to the question on future dangerousness,
gence by relying on the State's representations regarding and Willis would not have been sentenced to death. Ab-
FN167
the scope of the examination. Furthermore, con- sent Dr. Wright's report and testimony, the Court does
trary to the State's assertion, the record supports the trial not have confidence in the outcome of the penalty
court's finding that Attorney DeHart did not receive the phase.
FN168
Wright report. Thus, the Wright report was not

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 27
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN169. Cf. East, 55 F.3d at 1003 (Prosecution FN173. 466 U.S. 668 (1984).
had a duty to disclose a punishment phase wit-
ness' rap-sheet because if the prosecution had FN174. Id. at 686. See also Nealy v. Cabana,
revealed it, defense counsel would have invest- 764, F.2d 1173, 1177 (5th Cir.1985).
igated the witness' criminal history and eventu-
First, the defendant must show that counsel's perform-
ally uncovered the witness' mental records in
ance was deficient. This requires showing that coun-
the files of the Bexar County Court.).
sel made errors so serious that counsel was not func-
FN170. During a deposition before the state tioning as the counsel guaranteed the defendant by
habeas hearing, the lead trial prosecutor, J.W. the Sixth Amendment. Second, the defendant must
Johnson denied that he had ever met or heard show that the deficient performance prejudiced the
of Dr. Wright at the time of Willis's trial. Evid- defense. This requires showing that counsel's errors
ence produced during the state habeas hearing were so serious as to deprive the defendant of a fair
FN175
showed that Johnson had worked with Dr. trial, a trial whose result is reliable.
Wright on two other cases before Willis's trial.
FN175. Strickland, 466 U.S. at 687.
Johnson could not explain why, if Dr. Wright
was not conducting the examination at the re- Courts are extremely deferential in scrutinizing the
quest of the State, Willis was given Miranda performance of counsel and make every effort to elim-
warnings before the examination. FN176
inate the distorting effects of hindsight. It is
strongly presumed that counsel rendered adequate as-
FN171. See Kirkpatrick v. Whitley, 992 F.2d
sistance and made all significant decisions in the exer-
491, 497 (5th Cir.1993). FN177
cise of reasonable professional judgment. An at-
Because of the numerous errors the CCA made in torney's strategic choices informed by a thorough in-
addressing this claim: applying the sufficiency of the vestigation of relevant facts and law are virtually un-
FN178
evidence test for materiality; erroneously stating that challengeable. Thus, Willis must overcome a
the brief nature of the evidence presented at the penalty strong presumption that the conduct of his trial counsel
phase undermined, rather than supported, a finding of falls within a wide range of reasonable professional as-
FN179
materiality; and failing to consider that disclosure of the sistance.
report would have led to the favorable testimony of Dr.
FN176. See Lockhart v. Fretwell, 506 U.S. 364,
Wright, the CCA's finding that the Wright report was
372 (1993); Burger v. Kemp, 483 U.S. 776, 789
not favorable was contrary to and an unreasonable ap-
FN172 (1987); Strickland, 466 U.S. at 689; Green v.
plication of clearly established federal law.
Johnson, 116 F.3d 1115, 1122 (5th Cir.1997).
FN172. See 28 U.S.C. 2254(d).
FN177. See Strickland, 466 U.S. at 690; Duff-
VI. Ineffective Assistance of Counsel Smith v. Collins, 973 F.2d 1175, 1182 (5th
The constitutional standard for determining whether Cir.1992).
a criminal defendant has been denied the effective as-
FN178. See Boyle v. Johnson, 93 F.3d 180,
sistance of counsel was announced by the Supreme
FN173 187-88 (5th Cir.1996).
Court in Strickland v. Washington. The bench-
mark for judging any claim of ineffectiveness must be FN179. See Strickland, 466 U.S. at 687-91;
whether counsel's conduct so undermined the proper Belyeu v. Scott, 67 F.3d 535, 538 (5th
functioning of the adversarial process that the trial can- Cir.1995).
not be relied on as having produced a just result.
FN174
A two-prong test guides the inquiry: *23 To establish he has sustained prejudice, Willis

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 28
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

must show that there is a reasonable probability that, The CCA also stated that Woolard was surprised Willis
but for counsel's unprofessional errors, the result of the was found guilty, and that Woolard had loaded his
proceeding would have been different. A reasonable guns for the guilt-innocence phase and decided not to
probability is a probability sufficient to undermine con- present mitigation evidence. The CCA mentioned that
FN180
fidence in the outcome. Woolard spoke with a number of Willis's friends and re-
latives and that Investigator Caspari also spoke with
FN180. Strickland, 466 U.S. at 694; Cantu v. friends and relatives. Then the CCA found that Woolard
Collins, 967 F.2d 1006, 1016 (5th Cir.1992). made all significant decisions in the exercise of reason-
FN182
able professional judgment. Thus the CCA held
A. The Texas CCA's Analysis
that Willis did not overcome the presumption that
The state trial court held that Willis was entitled to
Woolard provided effective assistance of counsel.
relief under Strickland. The CCA overruled the trial FN183
court's recommendation of relief on this basis. The CCA
divided the analysis of ineffective assistance for Willis's FN182. Id. at 6.
two trial attorneys: Attorney DeHart and Attorney
Woolard. However, the CCA cited no federal authority FN183. Id. at 5.
requiring a petitioner to show that each attorney's con-
duct separately meets the Strickland standard as op- The CCA's overruling of the trial court was consist-
posed to the defense representation as a whole. Citing ent with the trial court's factual findings. The CCA re-
its own case, the CCA stated that [i]n view of the mul- lied on the record from the post-conviction trial court
tiple counsel representation of applicant, it was incum- but attached a different legal significance to facts found
bent upon applicant to prove deficient performance by by that court. For example, both the CCA and the trial
FN181 court noted that defense counsel spoke with a number of
all counsel. The CCA also stated that the record
did not reflect the two defense attorneys' respective du- friends and relatives of Willis in preparation for the
FN184
ties, responsibilities and division of labor. penalty phase. The CCA also found that facts
that were not relied upon by the trial court, such as de-
FN181. Ex Parte Willis, No. 27, 787-01, Order fense counsel's experience, were legally significant.
at 5 (citing McFarland v. State, 928 S.W.2d Furthermore, the CCA based its decision in part on its
482 (Tex.Crim.App.1995)). legal determination that Willis was required to show
that each defense counsel individually met the standard
For Attorney DeHart, the CCA conducted an over- for ineffectiveness. Because the CCA's resolution of the
view of DeHart's background. The CCA mentioned that claim is not directly contrary to the trial court's factual
Woolard had faith in DeHart's ability, that he had been findings, this Court must, as detailed above, defer to the
licensed for twenty-one years at the time of Willis's tri- state trial court's findings of fact.
al, that he had previously been employed as an Assistant
District Attorney for four years, that he was then the FN184. See id. at 6; Ex Parte Willis, No. 27,
Presiding Judge of the 384th District Court in Alpine, 787-01, Find. of Fact and Conc. of Law at 20.
and that he was considered a seasoned veteran, due to
his criminal law experience. Thus, the CCA held that on *24 Before addressing Willis's specific allegations
the record before it, Willis could not overcome the pre- of ineffectiveness, the Court finds that the CCA violated
sumption that DeHart provided effective assistance of clearly established federal law in holding that Willis
counsel. had to show each attorney's performance, as opposed to
the defense representation as a whole, met the Strick-
For Attorney Woolard, the CCA noted that land standard. Strickland does not require that the ap-
Woolard had been licensed to practice law for four plicable analysis be conducted separately for each attor-
FN185
years, and that Willis's case was his first capital trial. ney. Furthermore, later Supreme Court opinions

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 29
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

applying Strickland, in which the petitioner was repres- psychotic medications. As stated above, the CCA based
ented by more than one attorney at trial, conduct one its overruling of the trial court on defense counsel's leg-
Strickland analysis for the performance of defense al experience and its legal determination that Willis was
FN186
counsel as a whole. There is no support for the required to show that each attorney met the standard for
FN188
CCA's holding that Willis must prevail on separate ana- ineffectiveness.
lyses of deficient performance and prejudice for each
attorney. The CCA's ruling in this regard was therefore FN188. The other factors mentioned by the
FN187 CCA are relevant to defense counsel's perform-
contrary to clearly established law.
ance during the penalty phase.
FN185. Strickland, 466 U.S. at 687.
After the habeas hearing, the state trial court found
FN186. See Williams, 529 U.S. at 370 (alleging that defense counsel recognized a problem with Willis's
trial attorneys had been ineffective during sen- demeanor and suspected the problem could be related to
tencing); Wiggins v. Smith, 539 U.S. 510 medication. Despite counsel's awareness and suspicion,
(2003) (engaging in one Strickland analysis for Judge Jones found defense counsel made no effort or in-
petitioner's two defense attorneys, two public quiry to determine the cause of Willis's appearance or
defenders in the same office). demeanor, even though defense counsel had the right to
access Willis's medical records and it is rudimentary
FN187. Respondent's Motion for Summary FN189
and basic for counsel to gather records. Willis
Judgment states that Willis cannot prevail on now claims this failure to investigate constituted defi-
his ineffective assistance of counsel claim be- cient performance and ineffective assistance of counsel.
cause he did not present any testimony from
Attorney DeHart at the state habeas hearing. FN189. Ex Parte Willis, No. 27, 787-01, Find.
There is no post-Strickland case requiring the of Fact and Conc. of Law at 17.
testimony of both trial counsel as a prerequisite
to an ineffectiveness claim. On the contrary, In response, the State first argues counsel was not
federal law requires that the analysis for an in- unreasonable to believe that Willis's flat affect and lack
effectiveness claim is conducted as to defense of emotion was caused by medications for his back
counsel performance as a whole, not separately pain. The State points to the Pecos County Jail medical
for each attorney. Thus, Respondent's argument log, which reflects Willis took a number of medications
in this regard fails. for back pain. The medical log does not support the
State's argument as to defense counsel's belief because
B. Ineffective Assistance of Counsel At the Guilt- defense counsel did not obtain Willis's Pecos County
FN190
Innocence Phase Jail medical records. Defense counsel could not
First, the Court considers Willis's allegations that have known what medications Willis was taking, for
defense counsel's performance was deficient on various back pain or otherwise. Nor could defense counsel have
grounds during the guilt-innocence phase of trial. The known the effect or potential effect of those medica-
Court then separately considers the issue of prejudice as tions. Therefore, counsel could neither have based an
required by Strickland. understanding of Willis's manner on that information,
nor have made strategic trial decisions based thereon.
1. Failure to Investigate Demeanor & Failure to Discov-
er Unnecessary Medication FN190. Id. at 16-17.
The CCA overruled the trial court without address-
ing Willis's substantive allegation of ineffectiveness *25 The critical failing of counsel with respect to
based upon defense counsel's failure to investigate the Willis's demeanor was the failure to pursue or in any
jail records or discover the unjustified use of anti- manner respond to counsel's admitted concern over Wil-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 30
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

lis's demeanor, whether by gathering Willis's jail medic- Neither the State, Willis, the state trial court, nor
FN191
al records or speaking with an expert. Strickland the CCA articulated any benefit to the defense case
requires that the Court defer to counsel's decisions when from Willis's being medicated with unnecessary anti-
those decisions are both fully informed and strategic, in psychotic drugs. To the contrary, the harm to Willis is
the sense that it is expected, on the basis of sound legal well-documented, as discussed previously. Defense
reasoning, to yield some benefit or avoid some harm to counsel could not have made a decision about the bene-
FN192
the defense. Defense counsel cannot make in- fits or risks of Willis's medication because counsel did
formed or strategic decisions in the absence of a reason- not go to the minimal effort required to investigate Wil-
able investigation and thus Strickland does not require lis's demeanor, that is, to gather Willis's jail medical re-
deference to decisions that are not informed by an ad- cords and discover he was being unnecessarily medic-
equate investigation into the controlling facts and law. ated. In this case, the limits on investigation-the failure
FN193
Interpreting Strickland, the Supreme Court to gather the jail medical records-are not merely unreas-
stressed that a decision based on less than a complete onable. Considering counsel's admitted concern for Wil-
investigation is reasonable only to the extent that the lis's demeanor, the limits on investigation here are bey-
FN194
limits on the investigation were reasonable. ond explanation. Counsel's failure to address or rectify
Willis's demeanor is thus not entitled to a presumption
FN191. Cf., Roberts v. Dretke, 356 F.3d 632, of reasonableness because it was neither informed by a
639 (5th Cir.2004). Where, as here, counsel is reasonable investigation nor supported by any logical
aware of the client's history of mental prob- position that such failure would benefit Willis's defense,
lems, the reasonableness of a decision made by and thus cannot possibly be construed as strategic.
counsel not to investigate that history is sus- FN195
pect. Id.
FN195. See Moore, 194 F.3d at 616.
FN192. Moore v. Johnson, 194 F.3d 586, 615
(5th Cir.1999). The Court finds that defense counsel's failure to in-
vestigate Willis's demeanor was deficient performance
FN193. Id. See also Andrews v. Collins, 21 under Strickland. Counsel's failure to investigate Wil-
F.3d 612, 623 (5th Cir.1994) (counsel's stra- lis's demeanor was objectively unreasonable because: 1)
tegic decision entitled to deference because counsel was concerned with Willis's demeanor; 2) coun-
supported by an adequate investigation which sel could have addressed that concern by obtaining Wil-
included contact with at least twenty-seven lis's jail medical records but did not do so, even in light
people); Drew v. Collins, 964 F.2d 411, 423 the standard that gathering medical records is a basic
(5th Cir.1992) (counsel's strategic decision en- part of defense counsel's duties in a capital case; and 3)
titled to deference because counsel made no strategic decision supported the failure to gather the
reasonable inquiries into defendant's mental medical records.
state); Bouchillon v. Collins, 907 F.2d 589, 597
(5th Cir.1990) (Tactical decisions must be The Court also finds that the CCA's rejection of this
made in the context of a reasonable amount of claim was an unreasonable application of Strickland.
FN196
investigation, not a vacuum.); Wiggins, 539 In addition to errors made by the CCA already
U.S. at 533 ( strategic choices made after less discussed, the CCA's determination that counsel made
than complete investigation are reasonable all significant decisions in the exercise of reasonable
only to the extent that reasonable professional professional judgment is unreasonable. The CCA did
judgments support the limitations on investiga- not assess whether the failure to gather the jail medical
tion. ) (citation omitted). records actually demonstrated reasonable professional
FN197
judgment. Courts may not defer to decisions by
FN194. Wiggins, 539 U.S. at 533. counsel that are not strategic or are not informed by a

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 31
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

reasonable investigation or reasonable limits on invest- And he showed no mercy or remorse afterwards.
FN198 FN203
igation. The CCA's assumption that the failure to
investigate was adequate was thus an unreasonable ap-
FN199 FN200. Vol. 28 at 83, ll. 1-3.
plication of clearly established federal law.

FN196. Strickland is clearly established federal FN201. Vol. 28 at 83, ll. 8-12.
law within the meaning of 28 U.S.C. 2254.
FN202. Vol. 28 at 65, ll. 14-16.
See Wiggins, 539 U.S. at 522 (referring to the
clearly established precedent of Strickland. FN203. Vol. 28 at 82, ll. 4-24.
); Dowthitt, 230 F.3d at 743 (the merits of an
ineffective assistance of counsel claim are gov- Before addressing the substance of Willis's argu-
erned by the well-established rule of Strickland ments relative to these remarks, the Court finds two un-
v. Washington. ). worthy of review. Willis challenged the third remark on
direct appeal. The CCA found the third remark was not
FN197. See Wiggins, 539 U.S. at 527. a comment on Willis's demeanor but juxtaposed Willis's
presence at trial with the absence of the deceased vic-
FN198. See Strickland, 466 U.S. at 690-91; FN204
tim. The Court likewise finds that this prosec-
Wiggins, 539 U.S. at 528; Moore, 194 F.3d at
utorial remark was not a comment on Willis's trial de-
615.
meanor, and therefore, should not be included in this
FN199. See Wiggins, 539 U.S. at 528. analysis.

2. Failure to Object to Prosecution's Use of Willis's De- FN204. See Vol. 28 at 64, ll. 13-21 (My cli-
meanor at Guilt-Innocence Phase ents aren't in the courtroom today. They are
*26 Willis also contends trial counsel violated his dead. Understand the distinction....).
right to effective assistance of counsel by failing to ob-
Next, the State argues Willis is barred from
ject to the prosecutor's reference to his trial demeanor
presenting the fourth remark because he did not cite the
during closing arguments. Willis raises four statements
remark during the state habeas process. Although the
by the prosecution as the basis for his claim: 1) refer-
Court will not consider the fourth remark for reasons
ence to Willis's dead pan, insensitive, expressionless
FN200 explained below, the remark is not barred, under the
face; 2) description of Willis's cold fish eyes
Texas abuse-of-writ doctrine, as the State argues. The
on everybody and everything that has come in here, and
State relies upon two cases, both of which are properly
he just merely stared and watched very impassively,
distinguished from the instant case, to support its argu-
very cold heartedly, much like he probably did that
ment.
morning outside the fire when he watched and listened;
FN201
3) commenting that [t]his guy has been able to In Anderson v. Harless, the Supreme Court held
sit in here and observe everyone that took the stand, that a claim was not exhausted when it was raised as a
FN202
look at all of you throughout this proceeding; state law issue to the state courts, and thus the corres-
and 4) stating that [y]ou know, it's hard for us to even ponding federal constitutional claim had not been
imagine the perverted thoughts and the fascination this FN205
presented to the state courts. Willis's case is dis-
Defendant must have had standing out there ... ob- tinguished from Anderson because Willis presents a
serving and knowing what was going on inside ... What federal claim relying on federal law. Therefore, the
kind of thoughts go through somebody's mind like that? Court will not eschew consideration of the fourth re-
You know, what he was thinking when he is watching mark based upon Anderson. In Nobles v. Johnson, the
this satanic deed that he did? People burning up in there petitioner presented in the state courts a Sixth Amend-
... That's what he was doing, listening and watching ... ment claim that he had been denied the effective assist-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 32
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN206
ance of a competent court-appointed psychiatrist. presentation of two additional expert psycholo-
In federal court, the petitioner raised a claim of ineffect- gical reports that were not presented to the
ive assistance of counsel based on failure to present mit- state courts).
FN207
igating evidence. Nobles argued the gist of the
claims was the same and he should therefore be able to *27 Willis exhausted his claim with regard to the
present the federal court with the re-postured claim. fourth remark because its addition does not materially
FN208 alter the legal claim presented to the state court, but the
The Court rejected Nobles's argument, and held
that when the two claims required wholly different in- addition of the fourth remark does not place Willis's
quiries, the petitioner had not provided the state court federal claim in a stronger evidentiary posture. It is a
with the requisite fair opportunity to apply controlling less dramatic example of prosecutorial comment on
legal principles to the facts bearing upon his constitu- non-testimonial demeanor than either the first or second
FN209 remarks. Consequently, the Court finds that the fourth
tional claim. However, such is not the case for
Willis's claim. Here, the state court was given the op- remark is not material and does not make Willis's claim
portunity to consider precisely the same legal claim significantly stronger or different.
with the same facts. In Willis's case, the difference in
Because the fourth remark does not add to the
the federal petition is the addition of supplemental fac-
FN210 claim, the Court will not consider the remark in determ-
tual examples of prosecutorial comments. Includ-
ining the merits of Willis's claim. The merits of the
ing new facts in a federal habeas petition does not
claim will therefore be determined on the basis of the
render the federal claim based upon those facts unex-
first and second remarks only.
hausted unless the facts materially alter the legal claim
FN211
presented to the state courts. The facts must be To begin, Willis must demonstrate that counsel's
material and must put the claim in a significantly differ- performance fell below an objective standard of reason-
ent and stronger evidentiary posture than it was when FN213
FN212 ableness. Willis argues that under Texas or feder-
presented to the state courts. al law, the prosecutor's remarks constituted error, and
thus, a reasonable defense attorney would have objec-
FN205. Anderson v. Harless, 459 U.S. 4, 6
ted. Under state law, Willis argues that the CCA found
(1982).
error when the prosecution commented on the defend-
FN206. Nobles v. Johnson, 127 F.3d 409 (5th ant's non-testimonial demeanor by describing the de-
Cir.1997). fendant as cold, unnerved, uncaring ... [and] unsym-
FN214
pathetic. Willis argues that defense counsel's
FN207. Id. at 420. failure to object was objectively unreasonable because,
under this precedent, the trial court would have commit-
FN208. Id. ted reversible error by refusing to sustain an objection.
FN215
FN209. Id. (internal citations omitted).
FN213. See Strickland, 466 U.S. at 687.
FN210. The additional facts are not new facts
in the sense that the examples were part of the FN214. Good v. State, 723 S.W.2d 734, 736
trial record that was presented to the trial court (Tex.Crim.App.1986).
during the post-conviction hearing.
FN215. See Vaughn v. State, 931 S.W.2d 564,
FN211. Vasquez v. Hillery, 474 U.S. 254, 260 567 (Tex.Crim.App.1996).
(1986).
The State responds that prosecutorial comment on a
FN212. Dowthitt, 230 F.3d at 745-46 (finding a defendant's non-testimonial demeanor is not error ac-
petitioner's claim exhausted despite the FN216
cording to the Supreme Court . The State con-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 33
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

fuses the legal standard for reviewing a state court's de- objectively reasonable attorney would have objected to
termination of a claim under 28 U.S.C. 2254(d), the prosecutorial comments as improper under state law.
which requires a showing that the state court unreason- Moreover, because of the CCA's determination on direct
ably applied clearly established federal law, with the appeal, a determination that defense counsel's failure to
FN217
standard for ineffective assistance of counsel. object was sufficient performance would have been un-
The proper inquiry is whether a reasonably effective at- reasonable under Strickland, had the CCA applied fed-
torney would have objected to the prosecutor's state- eral law to this particular allegation of ineffectiveness.
ments, not whether the prosecutorial statements them- Because a reasonable attorney would have objected to
selves violated clearly established federal law. the comments as improper under state law, it is not ne-
cessary for the Court to decide whether a reasonable at-
FN216. See Bishop v. Wainwright, 511 F.2d torney would have objected under federal law. The
664, 667 (5th Cir.1975) (prosecutor's com- Court holds that defense counsel performed deficiently
ments about defendant's courtroom demeanor under the first prong of Strickland.
raise no habeas corpus issue).
FN220. See Morlett v. Lynaugh, 851 F.2d
FN217. See Strickland, 466 U.S. at 668. 1521, 1525 (5th Cir.1988), cert. denied, 489
U.S. 1086 (1989).
On Willis's direct criminal appeal, the CCA held
that the comments were improper under state law. FN221. Willis, 785 S.W.2d at 386 n. 8.
FN218
On habeas review, the state trial court found that
the prosecution commented on Willis's non-testimonial 3. Prejudice at the Guilt-Innocence Phase
demeanor, that the prosecution urged jurors to infer lack *28 The Court now considers whether Willis was
of remorse from the non-testimonial demeanor and that prejudiced by his trial counsel's deficient performance
FN219
defense counsel failed to object. Willis argues during the guilt-innocence phase. The Court views to-
defense counsel's performance was deficient under the gether all instance of deficient performance by defense
first prong of Strickland because a reasonable attorney counsel during the guilt-innocence phase to determine
FN222
would have objected to the comments as improper 1) whether Willis was prejudiced. To establish pre-
under state law, given the CCA's determination on dir- judice, Willis must show a reasonable probability exists
ect appeal that the prosecutor's comments violated state that, but for counsel's unprofessional errors, the result
FN223
law, and 2) under federal law, as a violation of Willis's of the proceeding would have been different.
fundamental right against self-incrimination protected
by the Fifth Amendment. FN222. See Williams, 529 U.S. at 399, 416
(holding that the state trial court was correct in
FN218. Willis, 785 S.W.2d at 386 n. 8. determining prejudice based on the entire
post-conviction record, viewed as a whole and
FN219. Ex Parte Willis, No. 27, 787-01 Find. cumulative of mitigation evidence presented
of Fact and Conc. of Law at 17. originally, and faulting the Virginia Supreme
Court for its piecemeal approach to the inef-
To the extent that the State argues that the failure to
fectiveness claim.); Moore, 194 F.3d at 619
object was not deficient performance because the objec-
FN220 (considering the cumulative errors of counsel
tion would have been futile or without merit, the
and finding prejudice).
Court disagrees. The objection would have been neither
futile nor meritless. To the contrary, the CCA determ- FN223. See Kimmelman v. Morrison, 477 U.S.
ined on direct appeal that the prosecutor's comments vi- 365, 375 (1986); Darden v. Wainwright, 477
FN221
olated state law, and therefore defense counsel's U.S. 168, 184 (1986); United States v. Conley,
objection would have been objectively reasonable. An 349 F.3d 837, 841-42 (5th Cir.2003); Williams

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 34
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

v. Collins, 16 F.3d 626, 631 (5th Cir.1994); and formance of counsel in failing to investigate Willis's de-
United States v. Bounds, 943 F.2d 541, 544 meanor or determine the medication that cause the de-
(5th Cir.1991). meanor.

Had defense counsel conducted a reasonable invest- The State also argues that Willis cannot prevail on
igation into Willis's demeanor, or at the least gathered his ineffective assistance claim grounded on counsel's
his jail medical records, counsel would have learned failure to investigate Willis's demeanor and failure to
that Willis was being medicated, absent medical need, detect the antipsychotic medications because he has not
with inappropriately high doses of antipsychotic drugs. shown that had counsel investigated Willis's demeanor,
And, as stated in the section addressing Willis's invol- counsel would have found an expert available to testify
untary medication claim, Willis was severely prejudiced at that time regarding the alleged impropriety of anti-
by the administration of the unnecessary antipsychotic psychotic medications. Testimony presented at Willis's
medications. The Supreme Court has recognized the post-conviction hearing demonstrated that, based on
harm that can arise from a defendant being medicated 1987 standards, the medication given to Willis was
FN224
with antipsychotic drugs during trial. medically inappropriate, and Judge Jones found as
FN225
much in fact. The Court finds that a reasonably
FN224. See Riggins, 504 U.S. at 142 (Kennedy, qualified expert in 1987 would have testified to such
J., concurring). It is a fundamental assumption and reasonably effective defense counsel would have
of the adversary system that the trier of fact ob- obtained one.
serves the accused throughout the trial, while
the accused is either on the stand or sitting at FN225. Ex Parte Willis, No. 27, 787-01 Find.
the defense table.... At all stages of the pro- of Fact and Conc. of Law at 16-17; Lipman
ceedings, the defendant's behavior, manner, fa- Dep. at 33, ll. 11-17; 52, ll. 3-53; 37, ll. 21-38,
cial expressions, and emotional responses, or ll. 14-54; Tr. at 252, ll. 20-24; Tr. at 268, ll.
their absence, combine to make an overall im- 1-5.
pression on the trier of fact, an impression that
can have a powerful influence on the outcome Therefore, the Court finds that Willis was preju-
of the trial.... The side effects of antipsychotic diced by defense counsel's failure to investigate his de-
drugs may alter demeanor in a way that will meanor. The CCA's determination that Willis was not
prejudice all facets of the defense.... As any tri- prejudiced is objectively unreasonable considering the
al attorney will attest, serious prejudice could clarity of the Supreme Court's jurisprudence on the po-
result if medication inhibits the defendant's ca- tential harm of medicating criminal defendants with an-
FN226
pacity to react and respond to the proceedings tipsychotic drugs, as well as the evidence in the
FN227
and to demonstrate remorse or compassion.); record regarding the harm to Willis. The defi-
Coy, 487 U.S. at 1016-20 (emphasizing the im- ciencies in counsel's performance during the guilt-
portance of the face-to-face encounter between innocence phase rendered the proceeding fundamentally
FN228
the accused and the accuser). unfair and the result of the proceeding unreliable.
Willis received ineffective assistance of counsel during
In addition, here the State used Willis's demeanor the guilt-innocence phase because Willis's trial counsel
and flat affect as an argument in support of his guilt. were deficient-by failing to investigate his demeanor
The state trial court found that the State referred to Wil- and by failing to object to the prosecution's reference to
lis's demeanor during trial as evidence of guilt and fu- his demeanor to establish guilt and future dangerous-
ture dangerousness and that the State urged jurors to in- ness-and because Willis was prejudiced by these defi-
fer a lack of remorse based on Willis's demeanor. These ciencies.
factual findings, to which this Court must defer, further
support that Willis was prejudiced by the deficient per- FN226. See Riggins, 504 U.S. at 127; Harper,

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 35
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

494 U.S. at 210; Sell, 539 U.S. at 176-77. now. You are aware of that case out in San Diego
where that old boy went to a McDonald's and killed
FN227. The CCA found that Willis did not 16 people in about 30 minutes.
demonstrate deficient performance of counsel,
and thus, the CCA did not substantively ana- A: Right.
lyze the prejudice requirement of Strickland
beyond simply stating that Willis had failed to Q: Did they ever develop a motive for that man going
show prejudice. See Ex Parte Willis, No. 27, berserk?
787-01, Order at 5.
A: No. I don't believe?
FN228. See Soffar v. Dretke, 368 F.3d 441, 471
Q: Okay. There can be a lot of speculation.
(5th Cir.2004), citing Lockhart, 506 U.S. at 372
. A: Right.
C. Ineffective Assistance at the Sentencing Phase Q: But unless that person tells you, you don't know.
*29 The Court turns now to Willis's claims of inef-
fective assistance of counsel at the sentencing phase. A: That's right.

1. Failure to Investigate and Discover the Wright Report Q: And that's what I need to know from you. Are you
Willis argues counsel was ineffective for failing to going to require yourself to know why they did
investigate and discover the report of Dr. Wright, the something?
psychologist who examined Willis before trial at the re-
quest of the prosecution. As detailed above, the Wright A: No. I don't believe so. As long as they did it, I be-
report indicated that Willis was not a future danger. For lieve I would go ahead and vote for it.
the reasons outlined in the following section addressing
Q: We get back to the premise that actions speak
claims of prosecutorial suppression, the Court holds that
louder than words.
the prosecution suppressed the Wright report. And
therefore, defense counsel's performance was not defi- A: Right.
cient, nor counsel ineffective, for failing to investigate
that which the State bore a duty to disclose and that Q: Okay. Because these-you have been reading about
which was hidden from the defense. these pit bull attacks?

2. Failure to Object to the State's Descriptions of Willis A: Right.

as an Animal
Willis argues that counsel's failure to object to pro- Q: You know, we don't need-you can't talk to the dog
secutorial comments characterizing Willis as an animal and find out why it wanted to eat the little four year
constituted ineffective assistance of counsel. The state old baby, can you?
trial court found that the prosecution characterized Wil-
A: Right.
lis as a pit bull, and animal, and a rat, during voir
dire, closing arguments and at the penalty phase. During Q: You know it's a mean, vicious dog, and it's capable
voir dire the following exchange took place between of hurting, crippling, and killing people?
FN229
Prosecutor Johnson and one juror. Defense coun-
sel did not object. A: Right, sir.

FN229. Vol. 5 at 15, ll. 4, 13-16. Q: And once it shows it has that propensity to do that
to a human being, you want to find out why the dog
Q: Okay. Well, let me give you a hypothetical here

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 36
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

went off its rocker and started doing that or you take Q: That's when we go by the actions rather than you
action? are going to explain it or say about it or whatever the
words may be.
A: I think I would take action on that.
A: Uh-huh.
Q: Okay. I think most of us will, but I want to make
sure that you understand that the motive of this De- Q: Okay. That's all we are coming in here and doing
fendant in doing this act and premeditation are not is showing you this Defendant's actions on June 11,
elements that the State is required to prove in this 1986, that resulted in the death of this woman. That's
courtroom to gain a guilty conviction and to gain a going to be all right?
death sentence.
A: Okay?
A: Right, sir.
Q: Okay. Because we can't get into his mind.
*30 Q: Okay?
A: Right.
A: Okay.
Q: And, of course, he doesn't have to take the stand
Prosecutor Johnson had the following exchange either and tell you why he did it because he has a
FN230
with another juror. Defense counsel did not ob- right to remain silent. Can you go along with that?
ject.
A: Yeah.
FN230. Vol. 4 at 76, ll. 13-77, 15.
Prosecutor Johnson also questioned another juror as
FN231
Q: Okay. But when it comes to proof, now, his motive follows. Defense counsel objected to this state-
isn't one of them. That's not going to bother you? ment.

A: I don't think so, if I have enough, like I said, FN231. Vol. 11 at 64, ll. 13-24.
enough proof to know that he did it.
Q: ... You have two children, eight and twelve. If they
Q: Okay. Because there are lots of times people do were playing out in the front yard and some person
things and they don't tell you why they did it. Even you had never seen before was walking a pit bull dog
though you want to know, they ain't going to tell you and that pit bull dog breaks his leash and attacks your
why they did it. eight your [sic] old and gets him down, hurts him real
bad, you come running out of the house here and
A: Yeah, I understand that. I'm that way to some- hearing all the commotion, you are not going to stop
times. I do things. and find out the reasons why that dog is attacking
your child, are you?
Q: But when that happens-and we don't know why it
happened, and they won't tell us, or it is an animal A: Well, no.
and it hurt somebody, and it can't tell us either.
Q: You are just going to react.
A: Right.
A: Right.
Q: But when that happens and we don't know what
the motive was, we just say the actions of that person Q: You are going to take care of that dog.
or animal speak loud and clear, don't they?
Finally, the State made the following statement dur-
A: Right. ing closing argument of the guilt-innocence phase:

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 37
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

[L]adies and gentlemen, this is an animal sitting right and our country, which many of us go to war
down here at the end of the table, just like one of for and defend for something like this to
them pit bull dogs in the back of the Robinson's [sic] come in here and have his due process. Vol.
yard. They attack and destroy stuff and you don't 29 at 43, ll. 11-20.
know why. You can't get in their mind....You don't
need to know the motive. Actions speak loud enough. [H]e wanted his due process. He wanted his
FN232 trial by 12 people. That's the type they are.
This is an animal.
They will be the judge and the jury and the
executioner but when it comes to their turn,
FN232. Vol. 28 at 70, ll. 3-10. no, no, no. They want to run behind the Con-
stitution, and then they want to run behind
The statement during closing argument was objec-
their rights, which they don't give to no one
ted to and thus was not an instance of deficient perform-
FN233 [sic] else. Vol. 29 at 46, ll. 18-23.
ance on the part of trial counsel.
Out here in West Texas, I have always
FN233. This prosecutorial comment was not
taken great pride in the fact that we are pretty
raised as a point of error on direct appeal. Wil-
hard people.... And just two generations ago,
lis does not argue that direct appeal counsel
ladies and gentlemen, our grandparents lived
was ineffective for failing to raise it.
out here under the laws of Judge Roy Bean,
In a footnote, Willis raises additional comments by who was a very famous jurist, and the law
the prosecutor, to which defense counsel did not object, was swift and certain back in those days.
that are also part of Willis's claim of ineffective assist- Vol. 29 at 39, ll. 8-14.
FN234
ance of counsel. The comments fall into three
I'm sorry this proceeding has taken this
categories: comments about Willis's exercise of his due
FN235 FN236 long, ladies and gentlemen, but, once again,
process rights, inflammatory arguments,
it's due process. Vol. 29 at 48, ll. 12-13.
and arguments justifying the death penalty based on its
FN237
deterrent effect. None of these specific comments FN236. The prosecution referred to Willis as: a
were raised in the state courts. The State argues the satanic demon, (Vol. 29 at 41, ll. 13-19); a
statements are therefore not exhausted. Because this monster from a horror film, (Vol. 29 at 44, ll.
Court finds that Willis's claim is rejected on the merits, 11-14); a thing, (Vol. 29 at 47, ll. 12-13);
it is unnecessary for the Court to decide whether the ad- and, the most cowardly, most despicable thing
ditional remarks are exhausted. that exists in our society, (Vol. 29 at 45, ll.
19-22).
FN234. See Pet. at 112, n. 43.
The prosecution also made the following
FN235. For example, the prosecutor stated:
comments:
If it was what was fair and what was right, I
I'm here to tell you ... when they snap, they
submit to you back in the old days, our
snap, and they are not human beings any-
grandparents might have taken him out there
more. They have no utility to us. None. What
and put him in the house, boarded it up, and
he did was a cold, calculating, heartless act
set it on fire. That would have been justice.
with methodical premeditated deliberation
That would have been an eye for an eye, but
when you are doing something on the floor.
today in our civilized society, even out here
Vol. 29 at 44, ll. 15-18.
in West Texas where we are hard people, we
have to live by the laws of our Constitution [I]t's hard for you to recognize those qualit-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 38
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN247
ies that exist in a person that turns them into to present mitigating evidence.
something other than a human being, but
they have no compassion, no forgiveness in FN238. The State argues that these comments
their hearts. Vol. 29 at 40, ll. 1-5. cannot form the basis of a claim of ineffective-
ness at the penalty phase because they were
And forevermore, once a person reaches made during voir dire or at closing arguments
that snapping point in their brain where they for the guilt-innocence phase. However, under
don't have the ability to discipline themselves Texas law, capital jury sentencing deliberations
from doing violent acts like this, they include evidence and arguments presented dur-
forever, then, have the capability of hurting ing both the guilt-innocence and penalty
and killing us forever, because once you pass phases. See Banda v. State, 890 S.W.2d 42, 51
that line, you have committed your soul to (Tex.Crim.App.1994).
the Devil. Vol. 29 at 41, ll. 13-19.
FN239. Vol. 11 at 68, ll. 18-21.
FN237. ... I want you to consider the deterrent
effect when you come back with your answer FN240. Vol. 28 at 70, ll. 3-10.
to these special issues, because there are people
FN241. Vol. 29 at 41, ll. 13-19.
out here who have no compassion for their fel-
low man, who are cold-hearted, bloody FN242. Vol. 29 at 44, ll. 11-14.
killers....Let him and all other people that are
like him that exist out here in our communities FN243. Vol. 29 at 47, ll. 12-13.
or around us or want them to be transients that
come into our communities know that we be- FN244. Vol. 29 at 41, ll. 13-19.
lieve in social vengeance.... We want them
FN245. 438 U.S. 586, 604 (1978).
answered Yes.... And anyone else like him
that wants to come out here.... I want them to FN246. 455 U.S. 104, 113-14 (1982).
know that our juries out here will give it to
them. Vol. 29 at 39, ll. 16, 20-47. FN247. See id. at 113-14; Lockett, 438 U.S. at
604.
*31 As to the merits of the remark, the State argues
that the remarks were not improper and thus defense Comments, such as those made by the prosecutor
counsel was not deficient for failing to object to them. here, do not violate Eddings or Lockett. While the Court
FN238
The State claims that the prosecution simply finds the comments beyond poor taste and shameful, the
used animal imagery to ascertain whether any of the Court must only decide whether the CCA's determina-
prospective jurors would hold the State to proving tion that the failure to object was not deficient perform-
motive. Willis argues that the animal imagery was used ance is an unreasonable application of Strickland .
to dehumanize him. Willis points to comments FN248
Willis has not cited, nor has the Court found on
FN239
throughout trial describing Willis as a rat, and independent review, persuasive authority that the com-
FN240 FN241
animal, a satanic demon, a monster ments would have been error had defense counsel ob-
FN242 FN243
from a horror film, a thing, and jected. It does not follow that, because the comments
someone who had committed his soul to the devil. are distasteful and shameful, the CCA's determination
FN244
Willis argued defense counsel should have ob- that counsel was not deficient is unreasonable applica-
FN245
jected under and Lockett v. Ohio, and Eddings v. tion of federal law. Our present rules are thus. Hence, as
FN246
Oklahoma. Both cases discuss the fundamental to this particular claim of ineffectiveness, the Court
respect for humanity underlying the Eighth Amend- cannot say that defense counsel's performance was defi-
ment, and both cases concern the right of the defendant cient. The Court need not reach the issue, then, of

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 39
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

whether Willis was prejudiced by his counsel's failure ceived as inconsistent with the CCA's opinion
to object to the State's descriptions of him as an animal. is the trial court's determination that defense
counsel did not prepare for the penalty phase.
FN248. See 28 U.S.C. 2254(d). This could be construed as inconsistent with
the CCA's statement that defense counsel
3. Failure to Cross Examine and Present Mitigating
Woolard and Investigator Caspari interviewed
Evidence
friends and relatives. However, the trial court
Willis argues that defense counsel was ineffective
also made a finding that defense counsel spoke
for failing to cross-examine the State's witnesses who
with four or five people who knew Willis.
provided testimony on aggravating factors and that de-
Thus, the trial court determined that, despite in-
fense counsel was ineffective for failing to present mit-
terviewing some people, defense counsel was
igating evidence. As stated above, the CCA addressed
nonetheless unprepared for the penalty phase,
the claim of ineffectiveness as a whole and did not ad-
and the CCA determined that the interviews
dress the specific claim of ineffectiveness at the penalty
conducted by defense counsel were sufficient
phase of the trial, but a portion of the CCA's analysis
to prevent a finding of deficient performance.
refers to the penalty phase. The CCA stated that defense
Thus, the CCA's opinion is not inconsistent
counsel was surprised Willis was found guilty and that
with the trial court's findings, but in fact relies
defense attorney Woolard had loaded his guns for the
upon them.
guilt-innocence phase. The CCA mentioned that
Woolard spoke with a number of Willis's friends and re- FN251. See Craker, 756 F.2d at 1213-14; West-
latives and that Investigator Caspari also spoke with ley, 83 F.3d at 721 n. 2.
friends and relatives of Willis. The CCA stated that de-
fense counsel decided not to present mitigation evid- As to Willis's claim that defense counsel was inef-
ence. The CCA held that Willis did not overcome the fective for failing to cross-examine the State's wit-
presumption that defense counsel provided effective as- nesses, the Court agrees with the State. To the extent
FN249
sistance of counsel. Also, the CCA divided the Willis argues defense counsel should have challenged
analysis of ineffective assistance for Willis's two trial the State's witnesses, Willis does not specify what evid-
attorneys which, as explained above, is contrary to ence a cross-examination would have uncovered. Thus,
clearly established law. Willis has not shown defense counsel was deficient in
FN252
this regard.
FN249. Ex Parte Willis, No. 27, 787-01, Order
at 5. FN252. See United States v. Green, 882 F.2d
999, 1003 (5th Cir.1989).
*32 The CCA's overruling of the trial court was not
FN250
inconsistent with the trial court's factual findings. As to the argument that defense counsel was inef-
The CCA based its decision on its determination that fective for failing to present mitigating evidence, the
defense counsel was reasonable to focus on the guilt- Court finds counsel's performance was deficient.
innocence phase and that defense counsel's mitigation Mitigating evidence concerning a particular defend-
investigation was reasonable, as was the decision to not ant's character or background plays a constitutionally
present mitigating evidence. The CCA held that the re- important role in producing an individualized senten-
cord before it did not meet the standard for deficient cing determination that the death penalty is appropriate
FN253
performance. Because the CCA's decision was not in- in a given case. Defense counsel did not
consistent with the trial court's findings, this Court must present any mitigating evidence during the punishment
FN251
defer to the state trial court's findings of fact. phase of the trial.

FN250. The factual finding that could be per- FN253. Moore, 194 F.3d at 612. See also

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 40
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

Woodson v. North Carolina, 428 U.S. 280 decision was reasonable); Wilson v. Butler, 813
(1976); Eddings, 455 U.S. 104. F.2d 664, 672 (5th Cir.1987) (remanding for
evidentiary hearing because record did not re-
In Moore v. Johnson, defense counsel failed to flect whether counsel made a sound strategic
present any mitigating evidence because defense coun- decision not to present mitigating evidence of
sel felt that mitigating evidence was contrary to an alibi troubled background and mental impairment);
defense and that the case was a guilt-innocence case, Lyons v. McCotter, 770 F.2d 529, 534-35 (5th
FN254
rather than a punishment case. The Fifth Cir- Cir.1985) (finding deficient performance be-
cuit held that while counsel's failure to develop or cause there was no sound strategic basis for
present mitigating background evidence is not per se de- counsel's failure to object to evidence of prior
ficient performance ... Strickland does not require defer- offenses); Mattheson v. King, 751 F.2d 1432,
ence to those decisions of counsel that, viewed in light 1439-40 (5th Cir.1985) (explaining strategic
of the facts known at the time of the purported decision, purpose motivating counsel's decision to ex-
FN255
do not serve any conceivable strategic purpose. clude evidence of mental impairment from sen-
The Fifth Circuit declined to defer to counsel's decision tencing phase); Moore v. Maggio, 740 F.2d
not to present mitigating evidence because the decision 308, 315-19 (5th Cir.1984) (explaining basis of
was neither informed by a reasonable investigation nor counsel's considered decision to limit investig-
supported by any logical position that such failure ation by excluding implausible lines of mitigat-
FN256
would benefit [the] defense. Given that coun- ing evidence).
sel's failure to investigate was not supported by reason-
ably professional limits upon investigation, the Court FN256. Moore, 194 F.3d at 616.
finds that there is no decision entitled to a presumption
FN257 FN257. Id. at 617. See also Wiggins, 539 U.S.
of reasonableness under Strickland.
at 522 ([O]ur principal concern in deciding
FN254. Moore, 194 F.3d at 614. whether [defense counsel] exercised
reasonable professional judgment, is not
FN255. Id. at 615. See Strickland, 466 U.S. at whether counsel should have presented a mitig-
681 (Counsel may not exclude certain lines of ation case. Rather, we focus on whether the in-
defense for other than strategic reasons.); vestigation supporting counsel's decision not to
Boyle, 93 F.3d 180 (explaining basis for coun- introduce mitigating evidence of [defendant's]
sel's strategic decision not to offer mitigating background was itself reasonable. (internal
evidence identified by the defendant); Loyd v. citations omitted)).
Whitley, 977 F.2d 149, 158 (5th Cir.1992)
(Whether counsel's omission served a stra- As in Moore, defense counsel's decision in this case
tegic purpose is a pivotal point in Strickland not to present any mitigating evidence was not motiv-
and its progeny. The crucial distinction ated or justified by any strategic or tactical rationale.
FN258
between strategic judgment calls and just plain Counsel's decision was instead borne out of poor
omissions has echoed in the judgments of this planning and false hopes for the guilt-innocence phase
court.) (footnote omitted); Profitt v. Waldron, of the trial. There was simply no thorough investiga-
831 F.2d 1245, 1249 (5th Cir.1987) (no re- tion of the law and facts relevant to all plausible lines of
FN259
quired deference to decisions that do not yield defense, necessary to make a strategic or tac-
any conceivable benefit to the defense); Bell v. tical decision not to present mitigating evidence.
FN260
Lynaugh, 828 F.2d 1085, 1090 (5th Cir.1987) Here, as in Moore, counsel was unprepared and
(stating that when counsel makes an informed did not expect to proceed to the punishment phase of
and considered decision not to present mitigat- Willis's trial immediately after the guilty verdict was re-
FN261
ing evidence, the issue becomes whether the turned. Also, counsel agreed to proceed rather

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 41
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

than request a continuance, as was the case in Moore. helped and could not have harmed the case. Thus, the
FN262
decision to forego mitigation could not be expected to
yield some benefit or avoid some harm to the defense.
FN258. See Moore, 194 F.3d at 615; Whitley, FN264
977 F.2d at 158-59, nn. 21-22; Profitt, 831
F.2d at 1249; Lyons, 770 F.2d at 534-35 ( FN263. See id. at 617. See also Darden, 477
Strickland does not require deference when U.S. 168 (counsel's failure to present mitigat-
there is no conceivable strategic purpose that ing evidence relating to defendant's character,
would explain counsel's conduct). psychiatric evaluation and history as a family
man did not constitute deficient performance
FN259. Moore, 194 F.3d at 615. where such evidence would have opened the
door to otherwise excluded evidence that de-
FN260. Id. See also McCoy v. Lynaugh, 874
fendant had prior criminal convictions, was
F.2d 954, 964 (5th Cir.1989) (counsel's de-
diagnosed as a sociopathic personality, and had
cision not to present mitigating evidence is en-
in fact abandoned his family); Mattheson, 751
titled to deference when based upon an in-
F.2d 1439, 1440 (counsel made reasonable
formed and reasoned practical judgment); Wilk-
strategic decision to omit presentation of mitig-
erson v. Collins, 950 F.2d 1054, 1064-65 (5th
ating evidence of mental impairment where
Cir.1992) (affording strategic decision defer-
such evidence would have opened door to
ence where record established counsel retained
known evidence that defendant was a violent
an investigator to explore whether mitigating
sociopath).
evidence relating to defendant's background or
mental ability was available); McCoy, 874 F.2d FN264. Moore, 194 F.3d at 615.
at 964 (finding scope of investigation reason-
able where counsel investigated possibility of Finally, it is well established that the type of mitig-
mitigating evidence by interviewing everyone ating evidence that could have been presented in Wil-
on a list provided by the capital defendant and lis's case is relevant to the sentencing determination. In
determined none of them had anything good to Skipper v. South Carolina, the Supreme Court held that
say about the defendant); Jones v. Thigpen, 788 evidence that the defendant would not pose a danger is
F.2d 1101, 1103 (5th Cir.1986) (counsel either spared (but incarcerated) must be considered potentially
neglected or ignored critical matters of mitiga- mitigating, and that a jury could have drawn favor-
tion). able inferences from ... testimony regarding
[defendant's] character and his probable future conduct
FN261. See Moore, 194 F.3d at 615. See also FN265
if sentenced to life in prison. The Court also
Ex Parte Willis, No. 27, 787-01 at 6. stated that a defendant's disposition to make a well-
behaved and peaceful adjustment to life in prison is it-
FN262. Moore, 194 F.3d at 615, n. 9.
self an aspect of his character that is by its nature relev-
FN266
*33 In many situations, ineffective assistance ant to the sentencing determination. Further-
claims are rejected because the record established more, information showing a defendant as a good fam-
FN267
counsel conducted an adequate investigation, but made ily member is mitigating evidence.
an informed trial decision not to use the potentially mit-
FN265. Skipper v. South Carolina, 476 U.S. 1,
igating evidence because it could have a prejudicial
FN263 4 (1986).
backlash effect on the defense. This is not such
a case. The mitigating evidence here-testimony of Wil- FN266. Id. at 7.
lis's heroic acts and good behavior-could only have

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 42
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

FN267. Hitchcock v. Dugger, 481 U.S. 393, FN270. See Williams, 529 U.S. at 393 ([It] is
397 (1987) (vacating death sentence for failure undisputed that Williams had a right-indeed, a
of trial judge to consider, in part, that petitioner constitutionally protected right-to provide the
had been a fond and affectionate uncle to the jury with the mitigating evidence that his trial
children of one of his brothers). counsel either failure to discover or failure to
offer.) Moore, 194 F.3d at 615; Stafford v.
Defense counsel's decision to not present mitigating Saffle, 34 F.3d 1557 (10th Cir.1994) (finding
evidence was deficient performance, based on counsel's deficient performance and rejecting argument
failure to investigate, failure to prepare, failure to fol- that an alibi defense during the guilt phase is
low-up and the fact that there could be no benefit, and per se inconsistent with mitigating evidence re-
thus no strategic reason, to not present mitigation. lating to the defendant's personal background);
FN268
Brewer v. Aiken, 935 F.2d 850 (7th Cir.1991)
(granting relief on claim that counsel failed to
FN268. Willis also argues that defense counsel
offer mitigating evidence during the sentencing
was ineffective for failing to make an individu-
phase in case involving an alibi defense at the
alized closing argument. Because this claim ad-
guilt phase).
dresses the failure of defense counsel to ac-
quire knowledge of Willis and present that FN271. Ex Parte Willis, No. 27, 787-01 Find.
knowledge at trail, the claim is incorporated in- of Fact and Conc. of Law at 19-22. Willis's de-
to the claim of failure to investigate and fense counsel failed to contact potential wit-
present mitigating evidence. nesses for the sentencing phase who ultimately
spoke at the habeas evidentiary hearing. Some
The CCA's determination that counsel's failure to
of the witnesses were present in the courtroom
present mitigating evidence was not deficient perform-
for Willis's trial. Some of the witnesses made it
ance is an unreasonable application of Strickland. The
clear to defense counsel that they were able to
CCA based its decision, without discussion of federal
testify on Willis's behalf. Defense counsel nev-
authority, on the fact that counsel focused on the guilt-
er followed up. See Pet. at 125.
innocence phase of the trial instead of the punishment
phase, that counsel spoke with some people who knew Limits on investigation are reasonable only to the
Willis, and on the fact that Willis failed to show each extent that reasonable professional judgments support
FN269 FN272
attorney separately met the Strickland standard. the limitations. Because this principle constitutes
clearly established federal law, the CCA's determination
FN269. See Ex Parte Willis, No. 27, 787-01,
that defense counsel's investigation was adequate in this
Order at 6.
instance is an unreasonable application of clearly estab-
Clearly established federal law requires defense lished federal law. While the CCA stated that defense
counsel to prepare for and investigate mitigating evid- counsel decided to forego mitigation and to load guns
FN270 for the guilt-innocence phase, the CCA failed to address
ence. While the CCA correctly noted that de-
fense counsel spoke with friends and relatives, the CCA whether such a decision was reasonable considering the
did not determine whether the decision to limit the in- nature of the mitigating evidence available in this case.
vestigation at that point actually demonstrated reason- The available mitigation evidence included good acts by
able professional judgment. The CCA did not address Willis and his good behavior while incarcerated. This is
the trial court's factual finding that the limits on the in- not a case in which mitigation would be inconsistent
vestigation were due to a failure to follow-up and a lack with the theory at the first phase of the trial or even a
FN271 situation wherein mitigation would be damaging. Here,
of preparation.
no reason exists to refrain from presenting evidence

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 43
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

about the good deeds and nature of a defendant, particu- of violence that would constitute a continuing
larly when the evidence includes testimony by law en- threat to society. TEX.CODE CRIM. P. art.
forcement officers. Defense counsel's decisions to fore- 37.071 (Vernon 2004). See also Flores v. John-
go mitigation and focus on guilt was not strategic be- son, 210 F.3d 456, 458 (5th Cir.2000) (Garza,
cause it could not be expected to yield some benefit or J., specially concurring) (thoroughly discussing
FN273
avoid some harm to the defense. Therefore, the the future dangerousness question and the lack
CCA's deference to defense counsel's decision to not of scientifically reliable evidence to support
present mitigation is an unreasonable application of such a determination under federal law).
FN274
Strickland. Overall, the theory that scientific reliability
underlies predictions of future dangerousness
FN272. Strickland, 466 U.S. at 690-91. See has been uniformly rejected by the scientific
also Wiggins, 539 U.S. at 524-26; Moore, 194 community absent those individuals who
F.3d at 615. routinely testify to, and profit from, predictions
of dangerousness .... what separates the execu-
FN273. See Moore, 194 F.3d at 615.
tioner from the murderer is the legal process by
FN274. See 28 U.S.C. 2254(d). which the state ascertains and condemns those
guilty of heinous crimes. If that process is
4. Prejudice at the Sentencing Phase flawed because it allows evidence without any
*34 The testimony that could have been presented, scientific validity to push the jury toward con-
but was not, at the penalty phase of Willis's trial per- demning the accused, the legitimacy of our leg-
tained to Willis's propensity for future dangerousness. al process is threatened. Id. at 465, 469-70.
FN275
Law enforcement officers, including Pecos Nearly twenty-five years earlier, the Supreme
County Sheriff Bruce Wilson, would have testified on Court indicated its disagreement in Jurek v.
Willis's behalf. Sheriff Wilson, the Chief Deputy Sher- Texas, 428 U.S. 262, 274-76 (1976), but the is-
iff, and two Pecos County jailers would have testified to sue will continue to demand the consideration
Willis's good behavior in jail and that Willis was not a of the federal courts.
FN276
danger or threat in jail. In addition, defense
counsel could have presented evidence that Willis sur- FN276. Tr. at 85, ll. 21-23 (Wilson); Tr. at 47,
rendered himself to authorities when he learned of the ll. 11-12 (Harris); Tr. at 111, ll. 3-12 (Pringle);
FN277 Tr. at 113, ll. 14 (Pringle). See also Tr. at 97,
charges against him; testimony describing Willis
FN278 ll. 23-98 (Wilson); Tr. at 106, ll. 1-18 (Archer);
as a non-violent person; evidence of heroic acts
FN279 Tr. at 114, ll. 3-5 (Pringle); Tr. at 49, ll. 2-6
by Willis; and testimony describing Willis as a
FN280 (Harris).
loving family man.

FN275. During the sentencing phase of a Texas FN277. This information could have been eli-
capital trial, the jury must answer two ques- cited from Deputy Jackson, one of the two pro-
tions. The first concerns whether the crime was secution witnesses during the penalty phase.
committed deliberately: Whether the conduct Deputy Jackson met Willis in Odessa after Wil-
of the defendant that caused the death of the lis voluntarily came forward upon learning of
deceased was committed deliberately, and with the charges against him. Jackson did not have
the reasonable expectation that the death of the to restrain Willis on the drive to Fort Stockton.
deceased or another would result. The second In fact, Willis sat in the front seat next to
asks about the defendant's propensity for future Deputy Jackson during the drive. Tr. at 118, ll.
dangerousness: Whether there is a probability 22-25; Tr. at 119, ll. 16-24.
that the defendant would commit criminal acts
FN278. See e.g., Tr. at 54, ll. 23-55 (Officer

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 44
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

Butts). weight by the jury, since the jailers would

have had no particular reason to be favorably
FN279. Several witnesses were available who predisposed toward one of their charges).
could have testified to how Willis saved the life
of a boy who was drowning by diving in and FN283. See Strickland, 466 U.S. at 668.
pulling the child out of a car which had acci-
dentally backed into the lake. Tr. at 21, ll. FN284. See Ex Parte Willis, No. 27, 787-01
22-25; Tr. at 62, ll. 19-64; Tr. at 12, ll. 2-21. Find. of Fact and Conc. of Law at 20.
See also Tr. at 36, ll. 20-38; Tr. at 11, ll. 11-12,
FN285. See Ex Parte Guzmon, 730 S.W.2d
21.
724, 735 (finding defense prejudiced by inef-
FN280. See e.g., Tr. at 51, ll. 5-53 (Officer fective assistance of counsel at capital penalty
Butts). phase where the State's evidence to prove fu-
ture dangerousness was extremely weak). See
Thus, the mitigation evidence that could have been also Strickland, 466 U.S. at 696; Martinez-Ma-
presented goes directly to the issue of Willis's cias, 979 F.2d at 1067 (We are left with the
propensity for future dangerousness, one of the two firm conviction that [petitioner] was denied his
questions jurors must answer during the sentencing right to adequate counsel in a capital case in
FN281
phase. Because of the extent of mitigating evid- which actual innocence was a close question).
ence concerning Willis's non-violent demeanor, the fact
that law enforcement officers, including jailers, and the Furthermore, the CCA did not reach the prejudice
FN282 prong of the Strickland analysis and thus this Court is
County Sheriff, were willing to testify to Wil-
lis's good behavior in jail, there is reasonable probabil- not constrained by section 2254(d) in determining
FN286
ity that, absent the failure of defense counsel, the jury whether Willis was prejudiced. However, be-
would have concluded death was not the appropriate cause of the clarity of Supreme Court precedents hold-
FN283 ing that the type of mitigation evidence available in this
punishment for Willis. In addition, the State's FN287
aggravating evidence was less than substantial; prosec- case is relevant, and for the reasons stated above,
utors presented only two witnesses at the penalty phase, a determination that Willis was not prejudiced is an un-
each testifying to Willis's bad reputation in the unspe- reasonable application of federal law. The Court holds
FN284 that Willis received ineffective assistance of counsel at
cified communities in which Willis lived. In a
case in which innocence is a close question and in the sentencing phase because counsel's performance
which the State's evidence of future dangerousness is was deficient and Willis was prejudiced by counsel's
weak, it is more likely that defense counsel's errors con- deficiency.
tributed to the jury's affirmative findings on issues of
FN285 FN286. Wiggins, 539 U.S. at 534 (finding that
punishment. Here, Willis has shown that but for
the Court's review is not circumscribed by a
counsel's deficient performance, the result of the pro-
state court conclusion with respect to prejudice,
ceeding would have been different.
as neither of the state courts below reached this
FN281. See Franklin v. Lynaugh, 487 U.S. 164, prong of the Strickland analysis).
177 (1988) (good conduct in prison is relevant
FN287. See e.g., Skipper, 476 U.S. at 4, 7;
to the special issue concerning future danger-
Hitchcock, 481 U . S. at 397.
ousness under Texas capital sentencing
scheme). Finding reversible error at both the guilt-innocence
phase and the sentencing phase, the Court need not ad-
FN282. See Skipper, 476 U.S. at 8 (testimony
dress Willis's cumulative error claim.
of jailers would have likely been given great

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 45
Not Reported in F.Supp.2d, 2004 WL 1812698 (W.D.Tex.)
(Cite as: 2004 WL 1812698 (W.D.Tex.))

CONCLUSION
Convinced, as stated above, that Willis's conviction
and sentence both were obtained in violation of the
United States Constitution, the Court grants Willis's re-
quest for relief as follows:

*35 It is hereby ORDERED that the State's Motion

for Summary Judgment is GRANTED IN PART and
DENIED IN PART.

It is further ORDERED that Petitioner's Cross-

Motion for Summary Judgment is GRANTED IN PART
and DENIED IN PART.

It is further ORDERED that Willis's Petition for

Writ of Habeas Corpus is GRANTED on the following
grounds: 1) Petitioner's Due Process rights were viol-
ated by the State's administration of medically inappro-
priate antipsychotic drugs without Willis's consent; 2)
the State suppressed evidence favorable and material to
the sentencing determination; 3) Petitioner received in-
effective assistance of counsel at the guilt-innocence
phase; and 4) Petitioner received ineffective assistance
of counsel at the sentencing phase.

W.D.Tex.,2004.
Willis v. Cockrell
Not Reported in F.Supp.2d, 2004 WL 1812698
(W.D.Tex.)

END OF DOCUMENT

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 U.S. Department of Justice
Office of Justice Programs
National Institute of Justice

Fire and Arson

Scene Evidence:
A Guide for Public
Safety Personnel

Research Report
 U.S. Department of Justice
Office of Justice Programs
810 Seventh Street N.W.
Washington, DC 20531

Janet Reno
Attorney General

Daniel Marcus
Acting Associate Attorney General

Mary Lou Leary

Acting Assistant Attorney General

Julie E. Samuels
Acting Director, National Institute of Justice

Office of Justice Programs National Institute of Justice

World Wide Web Site World Wide Web Site
http://www.ojp.usdoj.gov http://www.ojp.usdoj.gov/nij
Fire and Arson Scene Evidence:
A Guide for Public Safety Personnel

Written and Approved by the Technical Working Group on

Fire/Arson Scene Investigation

June 2000
NCJ 181584
 Julie E. Samuels
Acting Director

David G. Boyd, Ph.D.

Deputy Director

Richard M. Rau, Ph.D.

Project Monitor

Opinions or points of view expressed in this document represent a

consensus of the authors and do not necessarily reflect the official
position of the U.S. Department of Justice.

The National Institute of Justice is a component of the Office of

Justice Programs, which also includes the Bureau of Justice Assistance,
the Bureau of Justice Statistics, the Office of Juvenile Justice and
Delinquency Prevention, and the Office for Victims of Crime.
 Message From the Attorney General

A ctions taken at the outset of an investigation at a fire and

arson scene can play a pivotal role in the resolution of a case.
Careful, thorough investigation is key to ensuring that potential
physical evidence is not tainted or destroyed or potential witnesses
overlooked.

While many agencies have programs in fire and arson scene

processing, the level of training and resources available varies from
jurisdiction to jurisdiction, as does the opportunity to practice actual
investigation. To assist these agencies, the National Institute of Justice
convened a group of law enforcement and legal practitioners, as well
as expert fire investigators, to develop improved procedures for the
investigation and collection of evidence from fire and arson scenes.

I commend the hard work of the 31 members of the technical working

group that created this Guide. They represent the law enforcement,
prosecution, defense, and fire and arson investigation communities,
and their collective expert knowledge, experience, and dedication
made this effort a success.

This Guide is one method of promoting quality fire and arson scene
investigation. The type and scope of an investigation will vary from
case to case. Every jurisdiction should give careful consideration to the
recommendations in this Guide and to its own unique local conditions
and logistical circumstances. Although factors that vary among investi-
gations may call for different approaches or even preclude the use of
certain procedures described in the Guide, consideration of the Guides
recommendations may be invaluable to a jurisdiction shaping its own
protocols.

Janet Reno

iii
 Message From the President of the University of
Central Florida

T he University of Central Florida (UCF) is proud to take a leading

role in the investigation of fire and explosion scenes through the
establishment of the National Center for Forensic Science (NCFS). The
work of the Centers faculty, staff, and students, in cooperation with the
National Institute of Justice (NIJ), has helped produce the NIJ Research
Report Fire and Arson Scene Evidence: A Guide for Public Safety
Personnel.

More than 150 graduates of UCFs 25-year-old program in forensic

science are now working in crime laboratories across the country. Our
program enjoys an ongoing partnership with NIJ to increase knowledge
and awareness of fire and explosion scene investigation. We anticipate
that this type of mutually beneficial partnership between the university,
the criminal justice system, and private industry will become even more
prevalent in the future.

As the authors of the Guide indicate, the field of fire and explosion
investigation lacks nationally coordinated investigative protocols. NCFS
recognizes the need for this coordination. The Center maintains and
updates its training criteria and tools so that it may serve as a national
resource for public safety personnel who may encounter a fire or explo-
sion scene in the line of duty.

I encourage interested and concerned public safety personnel to use Fire

and Arson Scene Evidence: A Guide for Public Safety Personnel. The
procedures recommended in the Guide can help to ensure that more
investigations are successfully concluded through the proper identifica-
tion, collection, and examination of all relevant forensic evidence.

Dr. John C. Hitt

v
 Technical Working Group on Fire/Arson Scene
Investigation

T he Technical Working Group on Fire/Arson Scene Investigation

(TWGFASI) is a multidisciplinary group of content area experts
from across the United States and Canada, from both urban and rural
jurisdictions, each representing his or her respective agency or practice.
Each of these individuals is experienced in the investigation of fires,
the analysis of evidence gathered, or the use in the criminal justice
system of information produced by the investigation. They represent
such entities as fire departments, law enforcement agencies, forensic
laboratories, insurance companies, investigation firms, and government
agencies. Many of the members of TWGFASI were selected from the
Technical Working Group on Fires and Explosions (TWGFEX), which
serves as an advisory panel to the National Center for Forensic Science
(NCFS).

At the outset of the TWGFEX effort, the National Institute of Justice

(NIJ) and NCFS created the National Fire/Arson Scene Planning Panel
(the Panel), which evolved into TWGFASIcomposed of distinguished
law enforcement and research professionalsto define needs, develop
initial strategies, and steer the larger group. Additional members of
TWGFASI were then selected from recommendations solicited from the
Panel, NIJs regional National Law Enforcement and Corrections Tech-
nology Centers, and national agencies and organizations, such as the
National Fire Protection Association, the National Association of Fire
Investigators, and the U.S. Fire Administration.

Collectively, over a 2-year period, the 31 members of TWGFASI listed

on the following page worked together to develop this Guide, Fire and
Arson Scene Evidence: A Guide for Public Safety Personnel.

vii
 National Fire/Arson Scene Planning Panel of TWGFASI

Joan K. Alexander Brian M. Dixon* Thomas E. Minnich

Office of the Chief States Centre of Forensic Sciences U.S. Fire Administration
Attorney Toronto, Ontario, Canada Emmitsburg, Maryland
Rocky Hill, Connecticut
Ronald L. Kelly* Anthony D. Putorti
Carl Chasteen Federal Bureau of National Institute of Standards
Florida Division of State Investigation and Technology
Fire Marshal Washington, D.C. Gaithersburg, Maryland
Havana, Florida
John J. Lentini Dennis W. Smith*
Richard L.P. Custer Applied Technical Services, Inc. Kodiak Enterprises
Custer Powell, Inc. Marietta, Georgia Fort Wayne, Indiana
Westborough, Massachusetts
Frank Malter
John D. DeHaan, Ph.D.* Bureau of Alcohol, Tobacco
Fire-Ex Forensics, Inc. and Firearms
Vallejo, California Fayetteville, North Carolina

TWGFASI Members

Philip R. Antoci Terry-Dawn Hewitt Tommy K. Martin

New York City Police McKenna Hewitt Illinois State Police
Laboratory Edmonton, Alberta, Canada Springfield, Illinois
Jamaica, New York
Steven Hill Ron McCardle
Andrew T. Armstrong, Ph.D., U.S. Fire Administration Florida Division of State
FABC, CPC Emmitsburg, Maryland Fire Marshal
Armstrong Forensic Tallahassee, Florida
Laboratory, Inc. Mary R. Holt
Arlington, Texas Alabama Department of Cpl. Michael ODay
Forensic Sciences Pennsylvania State Police
Russell K. Chandler Birmingham, Alabama Fire Marshal Section
Virginia Fire Marshal Harrisburg, Pennsylvania
Academy David J. Icove, Ph.D., P.E.
Richmond, Virginia U.S. Tennessee Valley David M. Smith
Authority Police Associated Fire Consultants, Inc.
James B. Crippin Knoxville, Tennessee Tucson, Arizona
Colorado Bureau of
Investigation Christopher E. Jones Valerie Turner
Pueblo, Colorado Binax/NEL State Fire Marshals Office
Waterville, Maine Texas Department of
Lynne DeMent Insurance
Bureau of Alcohol, Tobacco Carter K. Lord Austin, Texas
and Firearms National Institute of Standards
Washington, D.C. and Technology Carrie M. Whitcomb
Gaithersburg, Maryland National Center for Forensic
Dirk D. Erickson Science
Mississippi Crime Laboratory Kevin L. Lothridge Orlando, Florida
Jackson, Mississippi National Forensic Science
Technology Center
St. Petersburg, Florida * These individuals served as
John F. Goetz
editors during the document
Royal Insurance Company
development process.
Yardley, Pennsylvania

viii
 Preface

I t is the intention of this Guide to acquaint a broad spectrum of public

safety personnel with the fire investigation process, so they may
understand their role in this important task and help identify, locate, and
preserve evidence in its varied forms, to either assist a specialist investiga-
tor when one is needed or to adequately document and collect evidence
when no assistance is needed or available. This Guide focuses on the
documentation and collection of physical evidence at fire/arson scenes.
Other issues of investigationsuch as insurance inquiries, background
information, fire deaths, the interpretation of fire dynamics and physical
evidence, and case analysis and profilingare not addressed in this
document.

Not every portion of this document may be applicable to all fires. It is at

the discretion of responding personnel (depending on their responsibilities,
as well as the purpose and scope of their duties) to apply the procedures
recommended in this Guide to a particular incident. Some of the proce-
dures described in this Guide may not be performed in the sequence
described or may be performed simultaneously.

ix
 Acknowledgments

T he National Institute of Justice (NIJ) wishes to thank the members

of the Technical Working Group on Fire/Arson Scene Investigation
(TWGFASI) for their extensive efforts on this project and their dedica-
tion to improving the procedures for fire/arson scene investigation. Each
of the 31 experts gave their time and expertise to draft and review this
Guide, providing feedback and perspective from a variety of disciplines
and from many areas of the Nation. The true strength of this Guide is
derived from their commitment to produce procedures that could be
implemented across the country, from rural townships to large cities.
In addition, thanks are extended to the agencies and organizations that
TWGFASI members represent for their flexibility and support, which
enabled the participants to see this project to completion.

NIJ is immensely grateful to the National Center for Forensic Science

(NCFS) at the University of Central Florida, particularly Director Carrie
Whitcomb and Project Coordinator Joan Jarvis, for its coordination
of the TWGFASI effort. NCFSs support in planning and hosting the
Technical Working Group meetings, as well as the support of the staff
in developing the Guide, made this work possible.

NIJ is grateful to the individuals from various national organizations

who responded to the request for nominations of experts in the field of
fire/arson scene investigation. TWGFASI members were selected from
their recommendations. In particular, thanks go to the American Society
of Crime Laboratory Directors, the National District Attorneys Associa-
tion, the International Association of Arson Investigators, and the Inter-
national Association of Bomb Technicians and Investigators. Addition-
ally, thanks are extended to the individuals, agencies, and organizations
across the country that participated in the review of this Guide and
provided valuable comments and input. While all review comments

xi
 were given careful consideration by TWGFASI in developing the final
document, the review by these organizations is not intended to imply
their endorsement of the Guide.

NIJ would like to thank the co-manager for this project, Kathleen
Higgins, for her advice and significant contributions to the development
of the Guide.

Special thanks go to former NIJ Director Jeremy Travis for his support
and guidance and to Lisa Forman, Lisa Kaas, and Anjali Swienton for
their contributions to the Technical Working Group program. Thanks
also go to Rita Premo of Aspen Systems Corporation, for her tireless
work editing and re-editing the various drafts of the Guide.

Finally, NIJ would like to acknowledge Attorney General Janet Reno,

whose support and commitment to the improvement of the criminal
justice system made this work possible.

xii
 Contents
Message From the Attorney General .............................................................. iii

Message From the President of the University of Central Florida ................ v

Technical Working Group on Fire/Arson Scene Investigation .................... vii

Preface ................................................................................................................ ix

Acknowledgments .............................................................................................. xi

Introduction ........................................................................................................ 1

Why Investigate Fires? ............................................................................. 1

The Fire Problem in the United States ..................................................... 2

The Problem of Fire Investigations .......................................................... 3

Then Who Investigates Fires? ................................................................... 5

Why This Guide? ...................................................................................... 6

Training Criteria ....................................................................................... 7

Background ............................................................................................... 7

Fire and Arson Scene Evidence: A Guide for Public Safety Personnel ....... 11

Section A. Establishing the Role of First Responders ....................... 13

1. Observe the Fire and Scene Conditions .................................... 13

2. Exercise Scene Safety ............................................................... 14

3. Preserve the Fire Scene............................................................. 16

4. Establish Security and Control ................................................. 19

5. Coordinate Activities ................................................................ 19

Section B. Evaluating the Scene .......................................................... 21

1. Introduce Yourself and Your Role as the Investigator ............... 21

2. Define the Extent of the Scene .................................................. 22

3. Identify and Interview Witnesses at the Scene .......................... 23

xiii
 4. Assess Scene Security at the Time of the Fire .......................... 24

5. Identify Resources Required to Process the Scene ................... 25

Section C. Documenting the Scene ...................................................... 29

1. Photograph/Videotape the Scene .............................................. 29

2. Describe and Document the Scene ........................................... 30

Section D. Processing Evidence at the Scene ...................................... 31

1. Identify, Collect, and Preserve Evidence .................................. 31

2. Prevent Contamination .............................................................. 32

3. Package and Transport Evidence .............................................. 33

4. Establish and Maintain the Chain of Custody ........................... 34

Section E. Completing the Scene Investigation .................................. 35

1. Release the Scene ...................................................................... 35

2. Submit Reports to the Appropriate Databases .......................... 36

Appendix A. Documentation Examples .......................................................... 41

Appendix B. Additional Reading ..................................................................... 57

Appendix C. National Resources ..................................................................... 59

Appendix D. Points of Contact ........................................................................ 61

Appendix E. List of Organizations .................................................................. 63

xiv
 Introduction
It is a capital mistake to theorize before one has data. Insensibly, one
begins to twist facts to suit theories instead of theories to suit facts.
Sherlock Holmes, A Study in Scarlet, by Sir Arthur Conan Doyle

A s Sherlock Holmes pointed out, many types of investigations are

susceptible to prejudgment, but few as often as fire scene invest-
igations. Fires, by their destructive nature, consume the evidence of their
initiation and progress as they grow. Investigations are compromised,
and often scenes are further destroyed by the activities of the fire service,
whose primary responsibilities are to save lives and protect property
against further damage. Fire scenes often involve all manner of public
entities: emergency medical, law enforcement, and fire services. Public
utilities such as gas and electric companies may be involved. Passers-by,
owners, tenants, customers, delivery agents all may have relevant infor-
mation. The press and curious individuals attracted to large fire scenes
can complicate investigations, as they make security a necessity. As
has frequently been said, A fire investigation is like a picture puzzle.
Everyone involved with it has some of the pieces, but no one has the
whole picture. It is up to the investigator to gather enough of these pieces
together to solve the puzzle.

Why Investigate Fires?

Since Roman times, civil authorities have recognized the threat that
fire represents, not only to the well-being of individuals, but also, and
perhaps more importantly, to the welfare and security of the community
as a whole. In the days of wooden walls and roofs and straw-covered
floors, any fire could ravage an entire city. So, it was in the interest of
all concerned to investigate fires and establish how they began. Civil
authorities attempted to control the fire risk by assessing penalties if an
accidental fire was allowed to get out of control. Dangerous practices,
such as leaving cooking fires unguarded, were identified and controlled.

1
 William the Conqueror issued an edict that cooking fires be damped or
covered after a particular time of evening so that unattended fires could
not flare up. This policy of couvre feu (cover the fire) gave rise to the
curfew of today. If authorities could determine the fire was deliberately
set, the perpetrator could be identified and punished. Some of the oldest
English common laws regarded arson to be the crime of burning the
house or dwelling of another. The crime of arson was considered to be
such a danger that it was punishable by death.

The same rationale applies today. Fires of accidental cause need to be

identified, so that dangerous practices, such as filling kerosene room
heaters with gasoline, can be eliminated by public education, or so that
defective or dangerous products, such as instant-on televisions or room
heaters with no overheating or tip-over protection, can be taken off the
market or modified so they no longer pose a significant fire risk. Fires of
incendiary (i.e., deliberate) cause must be detected, so that the firesetter
can be intercepted before doing more harm and punished as necessary.

The Fire Problem in the United States

According to the National Fire Incident Reporting System (NFIRS) of
the U.S. Fire Administration (USFA), Federal Emergency Management
Agency, the United States has one of the highest per capita fire death
rates among industrialized nations. In 1997, the U.S. fire death rate was
15.2 deaths per million. This was reflected in approximately 4,050 deaths
and more than 23,000 injuries for that year alone. Nearly 2 million fires
occurred in 1997, with a total estimated dollar loss of $8.5 billion.

Thirty-one percent of these fires were in structures. Residential fires

comprised 23 percent of all fires and 74 percent of all structure fires.
Eighty-four percent of all fatalities occurred in homes. In addition to
structure fires, each year hundreds of thousands of vehicle and outside
fires occur. In 1997, vehicle fires accounted for nearly 400,000 incidents,
resulting in approximately 450 civilian deaths and 1,700 civilian injuries.
Outside fires were estimated at more than 700,000 occurrences, account-
ing for 40 percent of the total number of reported fires.

2
Arson fires (defined as incendiary/suspicious in NFIRS) comprised
almost 16 percent of all reported fires in 1997 and accounted for more
than $554 million, or 15 percent, of the total estimated dollar loss. Since
all fires are considered accidental until they can be proven to be inten-
tionally set, the reported numbers are probably very conservative. There
is also reluctance to report arson fires, as it is feared that it may cause a
negative impact on the community or its economy.

While the general trend in numbers of fires and fire deaths has shown a
steady gradual decline over the past decade, the overall costs are still
significant. A continuing effort must be made to accurately identify the
exact origin (where the fire started) and cause (the factors that brought
the ignition source and first material ignited together) of all fires. This
will assist in learning more about how to prevent fires in the future.
Perhaps more important are preventive measures such as installing
working smoke detectors and residential sprinklers in every home and
using public education programs to effect behavior change.

The Problem of Fire Investigations

The advantages of accurate and thorough fire investigations are obvious.
The United States is one of the few countries where public authorities
have statutory responsibility to investigate all fires and determine their
origins and causes. While this may appear to be a solution to the problem
of fires and arsons, a number of major complications in fire investiga-
tions exist in the United States:

A fire can be a complex event whose origin and cause are not obvi-
ous. Investigators may have to expend considerable time and effort
before the cause can be identified. This is the area where Holmes
dictum is especially applicable. Without gathering data, the investiga-
tor can only guess at what might have caused the fire, based on circum-
stances alone. The training and preparation of qualified investigators
are often costly and time-consuming, requiring dedication to the
profession over many years.

3
 The destructive power of the fire itself compromises evidence from
the outset. The larger a fire becomes and the longer it burns, the less
evidence of causation will remain. In some fires, sufficient data to
establish the origin and cause (i.e., evidence) do not survive, no
matter how diligent the search or well prepared the searcher. This
destruction may be exacerbated by the normal and necessary duties
of fire personnel carrying out rescue, suppression, overhaul, and
salvage tasks.

The complexity of the threat a major fire presents to the health and
welfare of the community means that representatives from law
enforcement, fire, rescue, and emergency medical services; hazard-
ous materials teams; utility company personnel; health and safety
officers; and other public agency personnel may be on hand and may
conduct some obligatory official duties. The presence of so many
people, in addition to members of the press and the public who were
attracted by the sights and sounds of a major fire, offers yet more
chances for scene security to be compromised and critical evidence
to be contaminated, moved, or destroyed.

Responsibility for the investigation of fires is split. While the fire

service has the primary civil responsibility to establish a fires cause,
if the cause is determined to be accidental, the scene is released to
the owner or the owners insurance company for further examination.
If the conclusion is that the fire was purposely set, a crime has been
committed and law enforcement authority is needed to investigate the
crime. This often means releasing the scene and evidence to a local
law enforcement agency. Where local law enforcement has inade-
quate resources or personnel, an outside agency such as a State fire
marshal, or even a Federal agency (e.g., the Bureau of Alcohol,
Tobacco and Firearms [ATF]) may be asked to investigate. Any such
transfer may cause complications in establishing lines of authority. In
some agencies, investigative teams are composed of individuals from
both law enforcement agencies and fire departments so that the
continuity of the investigation can be maintained through both civil
and criminal phases. In a few cases, individuals have both law

4
 enforcement and fire authority, thanks to extensive cross-training,
so cases are handled from start to finish by a minimal number of
trained, motivated investigators.

A lack of commitment to conduct fire investigations exists on the

part of some law enforcement and fire agencies. Because of the
demand for rescue, hazardous materials, and emergency medical
assistance, in addition to their traditional duties of fire suppression,
fire departments often find themselves with fewer resources to
stretch to cover all obligations. As a result, the less visible responsi-
bilities of fire investigation and fire prevention are often scaled back.
These cutbacks occur despite the advantages that aggressive pro-
grams in both areas could provide to the individual department and
to the community it serves: Preventing a fire means there is no loss
of life or property, no risk to personnel, and no equipment costs;
investigating a fire means that potential accidental or criminal threats
to the community may be averted in the future. Law enforcement
agencies, facing similar overwhelming demands for their time, might
prefer not to become involved in cases where the scene is destroyed
or at the very least compromised, time-consuming scene examination
and interviews are required, and the resulting evidence is often
complex and circumstantial (meaning prosecutors may not want
to use it even if it is properly and completely collected).

Then Who Investigates Fires?

As might be gathered from the preceding points, who actually will
investigate a fire is not an easy question to answer. In addition to law
enforcement and fire authorities, there may be prosecuting attorney
investigators, forensic laboratory experts, engineering specialists (fire,
chemical, mechanical, or electrical), and private investigators represent-
ing insurance companies, owners, tenants, and manufacturers of the
myriad ignition sources found in a modern home or business.

5
 Considering the wide spectrum of people involved in the investigation of
fires, perhaps it is understandable why uniform guidelines for fire scene
documentation and evidence collection have not been previously crafted
for those public safety personnel who may not be trained in the specialized
aspects of fire scene investigation but may be in the position of having
to respond to a fire/arson scene. Whether from law enforcement or fire
agencies, the public-sector individuals responsible for investigations have
had access to specialized training programs through USFAs National
Fire Academy, ATF, the Federal Bureau of Investigation (FBI), State fire
marshal offices, professional organizations such as the International
Association of Arson Investigators, and various private-sector groups. In
1992, the National Fire Protection Association (NFPA) issued NFPA 921:
Guide for Fire and Explosion Investigations1, a consensus document
reflecting the knowledge and experience of fire, engineering, legal, and
investigative experts across the United States. This document is continu-
ously reviewed, public proposals and comments are solicited, and a
revised edition is produced every 3 to 5 years. It has become a bench-
mark for the training and expertise of everyone who purports to be an
expert in the origin and cause determination of fires. Unfortunately, not
everyone involved in the process of scene examination and evidence
documentation and collection will have the opportunity to master the
entire contents of comprehensive manuals, such as NFPA 921. As previ-
ously discussed, fires are common occurrences that threaten lives and
communities, so many people are involved in fire investigations, and
many people hold pieces of the puzzle, often without knowing it.

1. NFPA 921: Guide for Fire and Explosion Investigations, Quincy, Massachusetts:
National Fire Protection Association.

6
Training Criteria
With the completion of this Guide, the National Institute of Justice (NIJ)
intends to support the creation of training resource materials, including
publications and online interactive programs, through agencies such as
the National Center for Forensic Science (NCFS). These resources will
make it possible for all those involved in fire scenes to optimize the
evidence recovered in investigations.

Background
National Fire/Arson Scene Planning Panel and
Technical Working Group on Fire/Arson Scene
Investigation
NCFS, which is located at the University of Central Florida (UCF) in
Orlando and is an NIJ grantee, held a national needs symposium on arson
and explosives in August 1997. The symposiums purpose was to identify
problem areas associated with the collection and analysis of fire and
bombing debris. One of the problem areas identified by this national
panel of experts was the need for improved awareness of available
procedures for the recognition, documentation, and collection of evi-
dence at fire and arson scenes. In spring 1998, NIJ and NCFS, using
NIJs template, created a technical working group to develop guides for
fire/arson and explosion/bombing scene investigations. The NIJ Director
selected members for a planning groupthe National Fire/Arson Scene
Planning Panel (the Panel)to draft a guide for fire/arson scene investi-
gation, as well as members for an explosion/bombing scene planning
panel that met separately. The 11 Panel members represented Federal,
State, and local agencies involved in the investigation of both accidental
fires and arsons, as well as national and international organizations that
have been involved with the creation of professional guidelines (such
as NFPA 921) for scene investigations. The selected members not only
had extensive personal experience in the examination of fire scenes but
also represented the diversity of disciplines involved with fire investiga-
tionsfrom the scene to the laboratory and courtroom.

7
 The Panel was charged with developing an outline for a national guide
for fire/arson scene evidence collection, using the format in the NIJ
publication Death Investigation: A Guide for the Scene Investigator2
as a template.

The Panel met in April 1998 at the Office of Law Enforcement Standards
(OLES) at the National Institute of Standards and Technology (NIST) in
Gaithersburg, Maryland, under the sponsorship of NCFS and NIJ, to
begin the document development process. Because many aspects of fire/
arson scene investigation are complex and involve extensive specialist
training and knowledge, the Panel was careful to focus on the evidence
that should be collected and documented at all fire scenes and to empha-
size the need to evaluate the limitations of the investigators knowledge
and request specialized expertise when the complexities of the scene
exceeds those limitations. Documents already in place, such as NFPA
921 and standards E1188 and E860 from the American Society for
Testing and Materials, cover the collection and interpretation of complex
evidence from fire/arson scenes. The Panel determined that this Guide
should not attempt to supplant those widely accepted consensus docu-
ments but should supplement them for those public safety personnel who
may not be trained in the specialized aspects of fire scene investigation
but may be in the position of having to respond to a fire/arson scene.

In August 1998, the Technical Working Group on Fire/Arson Scene

Investigation (TWGFASI), which was led by Panel members, met at
UCF to expand, develop, and revise the document drafted by the Panel.
In other meetings, TWGFASI established a long-term commitment to a
separate group within it focusing on at-the-scene issues that will bring
together laboratory and onsite workers.

In September 1998, the draft of the document was circulated to

TWGFASI for review and comment. The comments generated by
that review were collated by the OLES Director.

2. Death Investigation: A Guide for the Scene Investigator, Research Report, Washington,
D.C.: U.S. Department of Justice, National Institute of Justice, December 1997, NCJ
167568.

8
 Prosecution Law Enforcement
Fire Insurance
Research Government Northeast Rocky Mountain
Forensic Investigation
Science Southeast West

TWGFASI Representation

Rocky
Discipline Northeast Southeast Mountain West Canada
Law
enforcement 2 2 1

Prosecution 1 1

Forensic
science 6 2

Research 1 1

Investigation 1 2 1

Fire 1

Insurance 1

Government 6 1 1

9
 National Reviewer Network
After the initial review by TWGFASI members, editors selected from the
Panel by NIJ met in Washington, D.C., in February 1999 to create a draft
document for wide review. The comments elicited in the broad review
were then incorporated into the final document by the editorial board
at a meeting in July 1999, prior to its submission for acceptance by
TWGFASI in October 1999.

The 132 organizations and individuals whose comments were solicited

during the national review included all levels of law enforcement,
regional and national organizations, attorneys, judges, and forensic
scientists from across the United States and Canada. A complete list of
organizations that received the document for review can be found in
appendix E.

10
Fire and Arson Scene Evidence:
A Guide for Public Safety Personnel

Establishing the Role of

Section A First Responders

Section B Evaluating the Scene

Section C Documenting the Scene

Section D Processing Evidence at the Scene

Section E Completing the Scene Investigation

11
 This handbook is intended as a guide to recommended practices
for the collection and preservation of evidence at fire/arson
scenes. Jurisdictional, logistical, or legal conditions may
preclude the use of particular procedures contained herein.

Actions taken pursuant to this Guide shall be performed in

accordance with department policies and procedures and Federal
and State laws.

Not every portion of this document may be applicable to all fires.

It is at the discretion of responding personnel (depending on their
responsibilities, as well as the purpose and scope of their duties)
to apply the procedures recommended in this Guide to a particu-
lar incident. Some of the procedures described in this Guide may
not be performed in the sequence described or may be performed
simultaneously.

12
Section A. Establishing the Role of First Responders
Note: The actions of public safety personnel providing emergency services
at a fire scene are critical not only to lifesaving and fire suppression efforts
but also to any subsequent investigation of the incident.

1. Observe the Fire and Scene A

Conditions
Principle: Public safety personnel responding to a fire should
observe conditions and activities at or near the scene so
they can give investigators arriving later an accurate and
complete description. First responders3 can gain infor-
mation valuable to the fire investigation during their
approach to and arrival at the scene.

Procedure: While approaching a fire scene, first responders should

observe and mentally note the following conditions and
activities and, as soon as conditions permit, initiate
permanent documentation of the information (e.g.,
written notes, voice recordings, videotapes):

A. The presence, location, and condition of victims and witnesses.

B. Vehicles leaving the scene, bystanders, or unusual activities near
the scene.
C. Flame and smoke conditions (e.g., the volume of flames and
smoke; the color, height, and location of the flames; the direction
in which the flames and smoke are moving).

3. The first public safety personnel to arrive on the scene, whether they are law enforce-
ment professionals, firefighters, or emergency medical services (EMS) personnel.

13
 D. The type of occupancy and use of the structure (e.g., a residential
occupancy being used as a business).
E. Conditions of the structure (e.g., lights turned on; fire through the
roof; walls standing; open, closed, or broken windows and doors).
F. Conditions surrounding the scene (e.g., blocked driveways, debris,
damage to other structures).
G. Weather conditions.
H. Unusual characteristics of the scene (e.g., the presence of contain-
ers, exterior burning or charring on the building, the absence of
normal contents, unusual odors, fire trailers4).
I. The fire suppression techniques used, including ventilation,
forcible entry, and utility shutoff measures.
J. The status of fire alarms, security alarms, and sprinklers.
Summary: First responders initial observations provide investiga-
tors with information pertinent to the investigation.
As the investigation unfolds, these observations may
provide the starting point for evidence collection and
preservation efforts.

2. Exercise Scene Safety

Principle: Safety overrides all other concerns: Ensuring the safety
of victims, bystanders, and public safety personnel is the
first responders foremost concern at a fire scene. First
responders must take steps to identify and remove or
mitigate safety hazards that may further threaten victims,
bystanders, and public safety personnel. They must
exercise due caution to avoid injuries to themselves and
others.

4. Physical trails of fuel and the burn patterns caused by those trails.

14
Procedure: Upon arrival at the scene, first responders should:

A. Evaluate the scene for safety hazards (e.g., structural collapse of

the building; smoke; electrical, chemical, or biological hazards;
other health risks).
B. Establish safety/hazard zones.
C. Communicate hazards to other personnel arriving at the scene.
D. Use tools and personal protective equipment appropriate to the
task during all operations.

DANGER:
Beware of incendiary or explosive devices!
The scene may contain devices specifically designed to kill or maim
public safety responders. Do not touch any suspected incendiary or
explosive device. Evacuate the area, and request the services of
personnel trained in the removal of such items.

Summary: Safety is the overriding concern during emergency

operations and the subsequent investigation. To ensure
the safety of civilians and public safety personnel, first
responders should take steps to identify, evaluate, and
mitigate scene hazards, and they should communicate
those hazards to other public safety personnel arriving
at the scene. Necessary safety zones should be estab-
lished to receive victims as they are evacuated. Personal
protective equipment and other measures should be used
to ensure the safety of all persons at the scene. The scene
should continually be reassessed to evaluate safety
hazards that may change due to fire conditions or
suppression efforts.

15
 3. Preserve the Fire Scene
Principle: Evidence at a fire scene takes many different forms,
some of which are transient (i.e., they are not permanent
and may disappear quickly, such as impressions in snow
or evaporating liquids). First responders must understand
how rescue, medical, fire suppression, overhaul,5 and
salvage6 efforts can adversely affect different forms of
evidence and take steps to preserve evidence accord-
ingly. First responders should assess the fire scene to
identify potential evidence, take preliminary steps to
preserve it, and notify appropriate authorities about its
existence.

Procedure: To preserve evidence, first responders should:

A. Observe and mentally note evidence that may be present at the

scene, such as:
Fire patterns (including multiple fire locations).
Burn injuries to victims and fire patterns on clothing.
Trailers, ignitable liquids, or other unusual fuel distribution
(e.g., piles of newspapers, furniture pushed together).
Incendiary/ignition/explosive devices (e.g., lighters, matches,
timing devices).
Shoe prints and tire impressions.
Broken windows and doors.
Distribution of broken glass and debris.
Indications of forced entry (tools and tool marks).

5. The process of opening concealed spaces to find pockets of fire and removing
smoldering materials.
6. The process of protecting, moving, or removing items.

16
 Containers.
Discarded clothing.
Trace evidence (e.g., hairs, fibers, fingerprints, blood, other
body fluids).
Evidence of crimes in addition to the possible arson
(e.g., weapons, bodies, drugs, clandestine drug laboratory
equipment).
Witnesses, bystanders, and victims.
Any other unusual items or the absence of normal contents or
structural components.
B. Recognize threats to evidence (i.e., its movement, removal,
contamination, or destruction) from any of the following sources:
Fire suppression activities, such as a straight stream applied at
the point of origin or deluge applications that may wash away
or dilute potential evidence.
Overhaul activities that destroy fire patterns.
Salvage activities that involve moving or removing potential
physical evidence.
Use of a tool in any manner that causes destruction of
evidence.
Movement of knobs, switches, and controls on appliances and
utilities.
Weather conditions that affect transient evidence (i.e., wind,
precipitation, or temperature changes).
Personnel walking through the scene.
Witnesses and victims leaving the scene.
Medical intervention and treatment of victims (e.g., by
damaging evidence at the scene or destroying victims
clothing).
Premature removal or movement of bodies.

17
 Vehicles at the scene (e.g., that introduce fluid to the scene
through vehicle leaks or destroy other evidence, including
shoe prints and tire impressions).
Contamination from external sources, such as fuel-powered
tools or equipment.
C. Protect evidence by:
Limiting excessive fire suppression, overhaul, and salvage.
Avoiding needless destruction of property.
Leaving bodies undisturbed.
Flagging items of evidence with cones or markers.
Recording observations through written notes or voice
recordings.
Covering items or areas containing evidence with objects
that will not contaminate the evidence (e.g., clean boxes or
tarpaulins).
Isolating items or areas containing evidence with rope, barrier
tape, barricades, or sentries.
Retaining and securing clothing items removed from victims
and suspects.
Obtaining information about victims and witnesses (i.e., their
names, addresses, and telephone numbers).
Preserving transient evidence (e.g., trace evidence, shoe
prints, tire impressions).
Removing evidence at risk of imminent destruction by the fire
or the structural collapse of the damaged building.
Ensuring that later arriving investigators are fully apprised of
the evidence discovered.
Summary: First responders should recognize items that may have
evidentiary value in a subsequent investigation and take
steps to protect them from damage that could result from
the fire, fire suppression, or rescue efforts.

18
4. Establish Security and Control
Principle: Fire suppression and rescue efforts can be performed
more efficiently and effectively if only essential autho-
rized personnel are permitted access to the area. Restrict-
ing access also ensures the safety of civilians and helps
to preserve the scene for subsequent investigation. First
responders should immediately establish control of the
scene. Then, as soon as conditions permit, first respond-
ers should initiate documentation of the scene to aid in
the investigation.

Procedure: To establish security and control, first responders should:

A. Set up a security perimeter (e.g., using barrier tape, fire line,

sentry).
B. Control access into the scene through the security perimeter.
C. Initiate documentation of the scene. (See Section C: Document-
ing the Scene.)
Summary: The actions of first responders at a fire scene are not
only critical to saving lives and suppressing fires; they
also set the stage for the investigators arriving to process
the scene by establishing a controlled security perimeter
and initiating documentation of the scene.

5. Coordinate Activities
Principle: Emergency operations at the fire scene may involve
many different agencies and organizations, each having
a different focus and performing different activities.
These activities must be well coordinated to accomplish
emergency operations efficiently and to preserve the
integrity of the scene. Upon arrival at the scene, first

19
 responders must establish an incident command system,
which allows for a systematic flow and transfer of critical
scene information.

Procedure: To coordinate activities at the scene, first responders

should:

A. Establish a command post and implement an incident command

system (i.e., a point of contact and line of communication and
authority for public safety personnel).
B. Establish staging areas to ensure that emergency and support
vehicles have access into the area.
C. Request additional personnel resources, such as firefighters,
EMS personnel, law enforcement officers, investigators, and
representatives of utility companies.
D. Inform authorities about the status of the incident, hazards, inju-
ries, witnesses, the location of evidence, and other pertinent facts.
Summary: First responders must establish an incident command
system to coordinate activities at the scene and
communicate information to responsible authorities.

20
Section B. Evaluating the Scene
Note: This and subsequent sections of this Guide are intended for the
individual responsible for the investigation of a fire incident. At the time
the scene is determined to involve an arson or other crime, the investiga-
tor must address legal requirements for scene access, search, and
evidence seizure.

1. Introduce Yourself and Your Role as

the Investigator B
Principle: Introductions at the scene allow the investigator7 to
establish formal contact with other official agency
representatives. The investigator should meet with the
incident commander8 and first responders to assess
previous events and the current status of the fire scene,
introduce himself or herself, identify essential personnel,
and determine what the scene safety and integrity issues
are.

Procedure: Upon arrival at the scene, and prior to entering the scene,
the investigator should:

A. Identify and contact the current incident commander and present

identification.
B. Conduct a briefing with the incident commander to determine who
has jurisdiction and authorization (legal right of entry) and to

7. The individual responsible for the investigation, whether a qualified fire investigator or
any member of the authorized agency given investigative responsibility.
8. The supervisor/officer in control of the scene.

21
 identify other personnel at the scene (e.g., law enforcement,
firefighting, EMS, hazardous materials, and utility services
personnel).
C. Determine the level of assistance required and whether additional
personnel are needed.
D. Determine initial scene safety prior to entry through observations
and discussions with first responders. Consider environmental as
well as personnel safety concerns. Assess changes in safety
conditions resulting from suppression efforts.
Summary: Onscene introductions establish formal contact with
the incident commander and other official agency
representatives and promote a collaborative investigative
effort. Preliminary scene safety concerns are addressed
and continually reevaluated due to the effects of chang-
ing fire conditions, suppression efforts, and scene
reconstruction.

2. Define the Extent of the Scene

Principle: To provide for the safety and security of personnel and
to protect the evidence, the investigator should perform
a preliminary scene assessment. The investigator should
determine the area in which the site examination will be
conducted and establish or adjust the scene perimeter.

Procedure: To determine the boundaries of the scene, the

investigator should:

A. Make a preliminary scene assessment (an overall tour of the fire

scene to determine the extent of the damage, proceeding from
areas of least damage to areas of greater damage) to identify
areas that warrant further examination, being careful not to
disturb evidence.

22
 B. Inspect and protect adjacent areaseven areas with little or no
damagethat may include nonfire evidence (e.g., bodies, blood
stains, latent prints, tool marks) or additional fire-related evidence
(e.g., unsuccessful ignition sources, fuel containers, ignitable
liquids).
C. Mark or reevaluate the perimeter and establish or reassess the
procedures for controlling access.
Summary: Procedures focusing on the perimeter and on control of
access to the fire scene protect the integrity of the scene.

3. Identify and Interview Witnesses at

the Scene
Principle: Persons with information about the scene, activities
prior to the fire, the fire, and its suppression are valuable
witnesses. The investigator should determine the identi-
ties and locations of witnesses and make arrangements
to conduct interviews.

Procedure: To develop a witness list, the investigator should:

A. Contact the incident commander, identify first responders and

first-in firefighters, and arrange to document their observations
either in writing or through recorded interviews.
B. Determine who reported the fire. (Secure a tape or transcript of
the report if available.)
C. Identify the owner of the building/scene, any occupants, and the
person responsible for property management.
D. Identify who was last to leave the building/scene and what oc-
curred immediately before they left.
E. Identify and interview other witnesses (e.g., neighbors, bystand-
ers, people injured during the fire, later arriving public agency
personnel) and record their statements.

23
 Summary: Developing a list of persons who have information about
the scene, activities prior to the fire, the fire, and its
suppression assists investigators with the subsequent
investigation.

4. Assess Scene Security at the Time of

the Fire
Principle: The investigator should determine whether the building
or vehicle was intact and secure and if intrusion alarms
or fire detection and suppression systems were opera-
tional at the time of the fire. This information helps to
establish factors such as ventilation conditions, possible
fire development timelines and scenarios, and whether
vandalism of the property or systems occurred prior to
the fire.

Procedure: To determine the status of security at the time of the fire,

the investigator should:

A. Ask first responders where entry was made, what steps were taken
to gain entry, and whether any systems had been activated when
they arrived at the scene.
B. Observe and document the condition of doors, windows, other
openings, and fire separations (e.g., fire doors). Attempt to deter-
mine whether they were open, closed, or compromised at the time
of the fire.
C. Observe and document the position of timers, switches, valves,
and control units for utilities, detection systems, and suppression
systems, as well as any alterations to those positions by first
responders.
D. Contact security and suppression system monitoring agencies to
obtain information and available documentation about the design
and functioning of the systems.

24
Summary: Determining and documenting system operations and
scene security at the time of the fire establishes existing
conditions of the scene. Data from detection and sup-
pression systems can provide information about the
fires origin and spread.

5. Identify Resources Required to

Process the Scene
Principle: The investigator should recognize limitations of his
or her own expertise and knowledge and determine
what personnel may be required to process the scene
according to NFPA 921 and other recognized national
guidelines. Except in the most obvious cases, the deter-
mination of a fires origin and cause may be a complex
and difficult undertaking that requires specialized
training and experience as well as knowledge of gener-
ally accepted scientific methods9 of fire investigation.
The investigator must either have appropriate expertise
or call upon the assistance of someone with that knowl-
edge. This is especially true in cases involving deaths,
major injuries, or large property losses.

Procedure: Based on the preliminary scene assessment and analysis

of fire patterns and damage at the scene, the investigator
should:

A. Identify a distinct origin (location where the fire started) and

an obvious fire cause (ignition source, first fuel ignited, and

9. As stated in NFPA 921, the scientific method consists of defining the problem,
collecting data, analyzing the data, developing hypotheses (e.g., what could have
caused the fire), testing the hypotheses, and considering alternative hypotheses.

25
 circumstances of the event that brought the two together). If
neither the origin nor the cause is immediately obvious, or if there
is clear evidence of an incendiary cause, the investigator should
conduct a scene examination in accordance with NFPA 921 and
other recognized national guidelines or seek someone with the
expertise required.

Note: At the time the scene is determined to involve an arson or other

crime, the investigator must address legal requirements for scene
access, search, and evidence seizure.

B. Know when to contact or request the assistance of specialized

personnel and to obtain specialized equipment as required to
assist with the investigation. For a comprehensive discussion
of suggested equipment and tools, see NFPA 921. Standard
equipment should include the following:
Barrier tape.
Clean, unused evidence containers (e.g., cans, glass jars, nylon
or polyester bags).
Compass.
Decontamination equipment (e.g., buckets, pans, detergent).
Evidence tags, labels, and tape.
Gloves (disposable gloves and work gloves).
Handtools (e.g., hammers, screwdrivers, knives, crowbars).
Lights (e.g., flashlights, spotlights).
Marker cones or flags.
Personal protective equipment.
Photographic equipment.
Rakes, brooms, spades, etc.
Tape measures.
Writing equipment (e.g., notebooks, pens, pencils, permanent
markers).
26
 C. Recognize and consider the interests of parties that may be affected
by the outcome of the investigation and, to the extent possible,
avoid jeopardizing those interests by taking steps to protect evi-
dence. These issues include spoliation,10 subrogation,11 and
third-party claims.
Summary: Identifying the required resources ensures that the scene
is processed by qualified individuals and that evidence
necessary for both criminal and civil litigation will be
preserved.

10. Damage or loss of evidence that would compromise a legal case.

11. Recovering damages by a finding of fault; finding that the cause of the fire was the
failure of some product or system.

27
Section C. Documenting the Scene
Section C. Documenting the Scene
1. Photograph/Videotape the Scene
Principle: Photographic documentation creates a permanent
record of the scene and supplements the written incident
report(s), witness statements, or reports on the position
of evidence. The investigator should create and preserve
an accurate visual record of the scene and the evidence
prior to disturbing the scene. Additional photography
or videography should occur as the investigation
progresses.

Procedure: The scene should be photographed prior to the distur-

bance or removal of any evidence and throughout the
scene investigation. The investigator (or other individual
C
responsible for evidence) should:

A. Photograph and/or videotape the assembled crowd and the fire

in progress.
B. Remove all nonessential personnel from the background when
photographing the scene and evidence.
C. Photograph the exterior and interior of the fire scene (consider
walls, doors, windows, ceilings, floors) in a systematic and
consistent manner. (Videotaping may serve as an additional
record but not as a replacement for still photography.)
D. Photograph any points or areas of origin, ignition sources, and
first material ignited.
E. Photograph any physical reconstruction of the scene.
F. Maintain photo and video logs. Record the date, the name of the
photographer, and the subject. (See appendix A for examples.)

29
 G. Determine whether additional photographic resources are neces-
sary (e.g., aerial photography, infrared photography, stereo
photography, photogrammetry).
Summary: Photographic documentation provides a permanent
record of the scene.

2. Describe and Document the Scene

Principle: Written documentation of the scene provides a perma-
nent record of the investigators observations that may
be used to refresh recollections, support the investi-
gators opinions and conclusions, and support
photographic documentation.

Procedure: The investigator should:

A. Prepare narrative, written descriptions and observations, including

assessments of possible fire causes. (See appendix A for samples.)
B. Sketch an accurate representation of the scene and its dimen-
sions, including significant features such as the ceiling height,
fuel packages (e.g., combustible contents of the room), doors,
windows, and any areas of origin.
C. Prepare a detailed diagram using the scene sketch(es), preexisting
diagrams, drawings, floor plans, or architectural or engineering
drawings of the scene. This may be done at a later date.
D. Determine whether additional documentation resources are
necessary.
Summary: Written descriptions of the scene, along with accurate
sketches and measurements, are invaluable for focusing
the investigation. Written scene documentation recreates
the scene for investigative, scientific analysis, and
judicial purposes and correlates with photographic
evidence.

30
Section D. Processing Evidence at the Scene
Note: At the time the scene is determined to involve an arson or other
crime, the investigator must address legal requirements for scene access,
search, and evidence seizure.

1. Identify, Collect, and Preserve

Evidence
Principle: Collecting evidence at a fire scene requires attention to
documenting and maintaining the integrity of the evi-
dence. The investigator should ensure that evidence
collectors identify and properly document, collect, and
preserve evidence for laboratory analyses, further
investigations, and court proceedings, in accordance
with NFPA 921 and other recognized national guidelines,
including American Society for Testing and Materials
standards E860, E1188, and E1459. This will ensure
that critical evidence is not contaminated or lost prior to D
analysis and that the chain of custody is maintained.

Procedure: To optimize the recovery and evaluation of physical

evidence, evidence collectors should:

A. Take precautions to prevent contamination. (See Prevent

Contamination.)
B. Document the location of evidence using written notes, sketches,
photographs, photo and video logs, the evidence recovery log,
evidence tags, and container labels. (See appendix A.) When
evidence is excavated, additional photographs may be of value.
C. Take special care to collect evidence in any areas of origin (such
as the first fuel ignited and ignition source) in cases where the fire
is not accidental.

31
 Note: In cases where the fire appears to be accidental, evidence
should not be needlessly disturbed, but the property owner or insurer
should be notified to avoid issues of spoliation.

D. Place evidence in labeled containers for transportation and

preservation. Evidence collected for laboratory identification of
ignitable liquids must be immediately placed in clean, unused,
vaportight containers (e.g., clean, unused paint cans; glass jars;
laboratory-approved nylon or polyester bags) and then sealed.
E. Label each container so that it is uniquely identified. Labeling
may include the name of the investigator, date and time of collec-
tion, case number, sample number, description, and location of
recovery.
F. Collect and preserve suitable comparison samples but recognize
that such samples may be unavailable.
G. Package evidence in accordance with their laboratories policies
and procedures.
H. Recognize the presence of other physical evidence, such as blood
stains, shoe prints, latent prints, and trace evidence, and use proper
preservation and collection methods or seek qualified assistance.
Summary: Proper collection and packaging preserve the value of
physical evidence.

2. Prevent Contamination
Principle: Preventing contamination during evidence collection
protects the integrity of the fire scene and evidence. The
investigator should ensure that access to the fire scene
after fire suppression is controlled and that evidence is
collected, stored, and transported in such a manner that
it will not be contaminated.

Procedure: To prevent contamination, personnel (e.g., evidence

collectors) should:

32
 A. Establish and maintain strict control of access to the scene.
B. Recognize that fuel-powered tools and equipment present poten-
tial contamination sources and should be avoided. When it is
necessary to use these tools and equipment, the investigator
should document their use.
C. Wear clean, protective outergarments, including footwear.
D. Use clean disposable gloves for collecting items of evidence. (To
avoid cross-contamination, gloves should be changed between
collection of unrelated items of evidence or when visibly soiled.)
E. Use clean tools for collecting items of evidence from different
locations within a scene. (Disposable tools also can be used.)
F. Place evidence in clean, unused containers and seal immediately.
G. Store and ship fire debris evidence containers of evidence col-
lected from different scenes in separate packages.
H. Package liquid samples to prevent leakage and ship them sepa-
rately from other evidence.
I. Store and ship fire debris evidence separately from other evidence.
J. Follow any specific laboratory requests, such as submitting an
unused sample container or absorbent medium for detection of any
contaminants.
Summary: Attention to scene control and evidence collection and
packaging helps to prevent contamination and ensures
the integrity of the evidence.

3. Package and Transport Evidence

Principle: Preventing changes in the condition of a sample after it
has been collected ensures the integrity of the evidence
and requires controlled packaging and transportation.
The investigator should ensure that packaging, transpor-
tation, and storage procedures are followed to prevent
any destructive changes in the condition of samples.

33
 Procedure: To minimize changes in the condition of samples, the
personnel responsible for packaging and transport
should:

A. Take precautions to prevent contamination. (See Prevent Con-

tamination.)
B. Package fragile items carefully.
C. Freeze or immediately transport items containing soil to the
laboratory.
D. Transport all volatile samples to the laboratory in a timely manner.
E. Comply with shipping regulations.
Summary: Adherence to approved packaging and transportation
procedures safeguards the condition of the evidence and
ensures its continued integrity.

4. Establish and Maintain the Chain of

Custody
Principle: Establishing and maintaining a chain of custody verifies
the integrity of the evidence. The investigator should
ensure that the chain of custody is maintained.

Procedure: Personnel responsible for the chain of custody should:

A. Maintain written records documenting the sample number, de-

scription of the evidence, date and location where it was found,
collectors name, and miscellaneous comments.
B. Document all transfers of custody, including the name of the
recipient and the date and manner of transfer.
C. Document the final disposition of the evidence.
Summary: Maintaining the chain of custody for evidence, from
collection through final disposition, ensures its integrity.

34
Section E. Completing the Scene Investigation

1. Release the Scene

Principle: The investigator should ensure that the scene is not
released until reasonable efforts have been made to
identify, collect, and remove all evidence from the
scene for further examination and that all physical
characteristics of the scene have been documented. In
addition, prior to releasing the scene, associated legal,
health, and safety issues must be articulated to the party
receiving the scene and reported to public safety agen-
cies if necessary. Doing so minimizes the risk of a
further incident or injury and the potential liability
of the authority releasing the scene.

Procedure: The investigator should ensure that the following tasks

are completed before releasing the scene:

A. Perform a final critical review:

Ensure that all evidence is inventoried and in custody.
Discuss preliminary scene findings with team members.
Discuss postscene issues, including forensic testing, insur-
ance inquiries, interview results, and criminal histories.
E
Assign postscene responsibilities to law enforcement
personnel and other investigators.12
Address legal considerations.

12. Remember that this Guide focuses on the documentation and collection of physical
evidence at fire/arson scenes. Other issues of investigation, such as insurance inquiries,
background information, fire deaths, the interpretation of physical evidence, and case
analysis and profiling, are not addressed in this document.

35
 B. Verify that all scene documentation has been completed. (This can
be accomplished using an incident documentation checklist or
closure form; see appendix A.)
C. Address structural, environmental, health, and safety issues.
D. Remove all investigative equipment and materials.
Recover and inventory equipment.
Decontaminate equipment and personnel.
E. Document the following information:
Time and date of release.
Receiving party.
Authority releasing the scene.
Condition of the scene at the time of release (e.g., structural,
environmental, health, and safety issues). Consider photo-
graphing and/or videotaping the final condition of the scene.
Cautions given to the receiving party upon release (e.g., safety
concerns, conditions, evidence, legal issues).
Summary: Responsibility for the scene should be transferred to an
authority having jurisdiction or to the party with the
legal right to the scene, after the scene examination, the
condition of the scene, and any cautions supplied have
been documented.

2. Submit Reports to the Appropriate

Databases
Principle: Detailed fire information is collected, integrated, and
disseminated through national and State databases.
These data help authorities identify fire trends and

36
 develop innovative procedures and equipment. The
responsible agencies must file incident reports with the
appropriate databases.

Procedure: The investigator should collect sufficient information

to facilitate reporting to the following databases as
appropriate:

A. Arson and Explosives National Repository (Bureau of Alcohol,

Tobacco and Firearms).
B. Bomb Data Center (Federal Bureau of Investigation).
C. National Fire Incident Reporting System (U.S. Fire Administra-
tion).
D. National Incident-Based Reporting System (Federal Bureau of
Investigation).
E. State and local fire incident reporting systems.
Summary: The responsible agencies should contribute to databases
that compile information for purposes of identifying fire
trends and developing suspect profiles.

37
Appendixes

Appendix A Documentation Examples

Appendix B Additional Reading

Appendix C National Resources

Appendix D Points of Contact

Appendix E List of Organizations

39
 Appendix A. Documentation Examples
The forms in this appendix are provided to assist in the organization of
investigation information and data. They are intended as examples and
may not include all information needed or may refer to information that
is not applicable. The forms are taken from NFPA 906: Guide for Fire
Incident Field Notes13 and are printed here by permission of NFPA. For
information on the development of these forms and instructions on their
use, see NFPA 906.

13. NFPA 906: Guide for Fire Incident Field Notes, Quincy, Massachusetts: National Fire
Protection Association.

41
43
44
45
46
47
48
49
50
51
52
53
54
55
 Appendix B. Additional Reading
The documents listed below are for informational purposes and should
not necessarily be considered authoritative in their entirety.

American Society for Testing and Materials. E86097 Standard Practice

for Examining and Testing Items That Are or May Become Involved in
Products Liability Litigation. West Conshohocken, Pennsylvania: Ameri-
can Society for Testing and Materials, 1999.

American Society for Testing and Materials. E118895 Standard Prac-

tice for Collection and Preservation of Information and Physical Items
by a Technical Investigator. West Conshohocken, Pennsylvania: Ameri-
can Society for Testing and Materials, 1999.

American Society for Testing and Materials. E145992 Standard Guide

for Physical Evidence Labeling and Related Documentation. West
Conshohocken, Pennsylvania: American Society for Testing and Mate-
rials, 1998.

Bureau of Alcohol, Tobacco and Firearms. ATF Arson Investigative

Guide. Washington, D.C.: U.S. Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, 1997.

Cole, Lee S. The Investigation of Motor Vehicle Fires. 3d ed. Novato,

California: Lee Books, 1992.

DeHaan, John D. Kirks Fire Investigation. 4th ed. Upper Saddle River,
New Jersey: Brady Publishing/Prentice Hall, 1997.

DiNenno, Philip J., ed. The SFPE Handbook of Fire Protection Engineer-
ing. Quincy, Massachusetts: National Fire Protection Association and
Society of Fire Protection Engineering, 1999.

Glossary of Terms. Fire and Arson Investigator 40 (2): 2534.

57
 International Fire Service Training Association. Introduction to Fire
Origin and Cause. 2d ed. Stillwater, Oklahoma: Fire Protection
Publications, 1997.

Munday, J.W. Safety at Scenes of Fire and Related Incidents. London:

Fire Protection Association, 1995.

National Fire Protection Association. Fire Protection Handbook. 18th ed.

Quincy, Massachusetts: National Fire Protection Association, 1997.

National Fire Protection Association. NFPA 472: Standard for Profes-

sional Competence of Responders to Hazardous Materials Incidents.
Quincy, Massachusetts, 1999.

National Fire Protection Association. NFPA 906: Guide for Fire

Incident Field Notes. Quincy, Massachusetts: National Fire Protection
Association.

National Fire Protection Association. NFPA 921: Guide for Fire and
Explosion Investigations. Quincy, Massachusetts: National Fire Protec-
tion Association.

A Pocket Guide to Accellerant Evidence Collection. 2d ed. Saugus,

Massachusetts: Massachusetts Chapter, International Association of
Arson Investigators, 2000.

Quintiere, James G. Principles of Fire Behavior. Albany, New York:

Delmar Publishers, 1997.

58
 Appendix C. National Resources
interFIRE
877INTERFIRE
URL: http://www.interfire.com

International Association of Arson Investigators

3147394224
URL: http://www.fire-investigators.org

International Fire Service Training Association

4057445723
URL: http://www.ifsta.org

National Association of Fire Investigators

3124276320
URL: http://www.nafi.org

National Center for Forensic Science

4078236469
URL: http://ncfs.ucf.edu

National Fire Protection Association

6177703000
URL: http://www.nfpa.org

59
 Appendix D. Points of Contact
Bureau of Alcohol, Tobacco and Firearms
Headquarters Enforcement Operations Center
888ATFFIRE
URL: http://www.atf.treas.gov

Arson and Explosives National Repository

8004618841
2029274590

Arson and Explosives Programs Division

2029277930

National Laboratory
3017629800

Chemical Transportation Emergency Center (CHEMTREC)

8002628200
URL: http://www.chemtrec.org

Federal Bureau of Investigation

Chemistry Division
2023244318
URL: http://www.fbi.gov

Federal Emergency Management Agency

U.S. Fire Administration
3014471000
URL: http://www.usfa.fema.gov

National Institute of Standards and Technology

Building and Fire Research Laboratory
3019756850
URL: http://www.bfrl.nist.gov

61
 U.S. Consumer Product Safety Commission
8006382772
URL: http://www.cpsc.gov

U.S. Environmental Protection Agency

National Response Center
8004248802
URL: http://www.epa.gov

62
 Appendix E. List of Organizations
The following is a list of public and professional organizations to which a
draft copy of this document was mailed.

Accomack County (Virginia) Sheriffs Conference of State Court Administrators

Office
Connecticut State Police Forensic Science
Alaska Criminal Laboratory Laboratory
Alaska Public Defender Agency Conyers (Georgia) Police Department
Allegheny County (Pennsylvania) Fire Council of State Governments
Marshal
Covington (Tennessee) Fire Department
American Academy of Forensic Sciences
Crime Scene Academy
American Bar Association
Criminal Justice Institute, Inc.
American Correctional Association
Delaware State Fire Marshals Office
American Jail Association
Drug Enforcement Administration
American Prosecutors Research Institute
Edinburg (Texas) Police Department
American Reinsurance Company
Fairbanks (Alaska) Police Department
American Society of Crime Laboratory Directors
Federal Bureau of Investigation
American Society of Law Enforcement Trainers
Federal Law Enforcement Training Center
Anchorage (Alaska) Police Department
Florida Department of Law Enforcement
Arapahoe County (Colorado) Sheriffs Office
Florida International University
Armed Forces Institute of Pathology
Florida Division of State Fire Marshal
Association of Federal Defense Attorneys
Georgia Bureau of Investigation
Bridgeport (Michigan) Forensic Laboratory
Harlingen (Texas) Police Department
Bristol (Virginia) Police Department
Hidalgo County (Texas) Sheriffs Office
Broward County (Florida) Sheriffs Office
Illinois State Police
Brownsville (Texas) Police Department
Indiana State Police Laboratory Division
Bureau of Alcohol, Tobacco and Firearms
The Institute for Genomic Research
Cameron County (Texas) Sheriffs Office
Institute of Police Technology and
Campaign for an Effective Crime Policy Management, University of North Florida
Chicago (Illinois) Fire Department International Association for Identification
Childrens Defense Fund International Association of Bomb
Technicians and Investigators
Cincinnati (Ohio) Fire Division
International Association of Chiefs of Police
City of Donna (Texas) Police Department
International City/County Management
City of Inver Grove Heights (Minnesota) Association
Clark County (Nevada) Fire Department International Homicide Investigators Association
Cleveland State Community College Basic
Iowa Division of Criminal Investigation
Police Academy
Jefferson Parish (Louisiana) Fire Department
Commission on Accreditation for Law
Enforcement Agencies Juneau (Alaska) Police Department

63
 Laredo (Texas) Police Department National Organization for Victim Assistance
Law Enforcement Training Institute, National Sheriffs Association
University of MissouriColumbia
New Hampshire State Police Forensic Laboratory
Los Angeles (California) Fire Department
New Jersey State Police
Maine State Police Crime Laboratory
New York State Office of Fire Prevention
Massachusetts State Police and Control
McAllen (Texas) Police Department Office of Law Enforcement Standards, National
Institute of Standards and Technology
Metropolitan Government of Nashville and
Davidson County Criminal Court Orange County (California) Sheriffs Department
Division III
Orange County (New York) Community College
Metropolitan Government of Nashville and
Peace Officer Standards and Training
Davidson County Office of the District
Attorney General Pennsylvania State Police
Metropolitan Nashville (Tennessee) Police Pharr (Texas) Police Department
Academy
Pinellas County (Florida) Forensic Laboratory
Metropolitan Nashville (Tennessee) Police
Department Police Association

Michigan Department of State Police Police Executive Research Forum

Mission (Texas) Police Department Police Foundation

National Association of Attorneys General Rhode Island State Crime Laboratory

National Association of Black Women Attorneys San Diego (California) Police Department

National Association of Counties The Sentencing Project

National Association of Criminal Defense Sitka (Alaska) Police Department

Lawyers South Carolina Law Enforcement Division
National Association of Drug Court Professionals St. Louis (Missouri) Metropolitan Police
National Association of Police Organizations, Inc. Department

National Association of State Alcohol and State of Florida Crime Laboratory

Drug Abuse Directors Suffolk County (New York) Crime Laboratory
National Association of Women Judges Tennessee Bureau of Investigation
National Center for State Courts Tennessee Law Enforcement Training Academy
National Center for Victims of Crime Texas Department of Public Safety, Texas
National Clearinghouse for Child Abuse Rangers
and Neglect Town of Goshen (New York) Police Department
National Conference of State Legislatures Tucson (Arizona) Police Department
National Council on Crime and Delinquency University of Texas Pan American Police
National Crime Prevention Council Department

National Criminal Justice Association U.S. Border Patrol

National District Attorneys Association U.S. Conference of Mayors

National Governors Association U.S. Postal Inspection Service

National Law Enforcement and U.S. Sentencing Commission

Corrections Technology Centers Webb County (Texas) Sheriffs
National Law Enforcement Council Department

National League of Cities Weslaco (Texas) Police Department

National Legal Aid and Defender Association Willacy County (Texas) Sheriffs Office
Wisconsin State Crime Laboratory
64
 About the National Institute of Justice
The National Institute of Justice (NIJ), a component of the Office of Justice Programs, is the
research agency of the U.S. Department of Justice. Created by the Omnibus Crime Control
and Safe Streets Act of 1968, as amended, NIJ is authorized to support research, evaluation,
and demonstration programs, development of technology, and both national and international
information dissemination. Specific mandates of the Act direct NIJ to:
Sponsor special projects and research and development programs that will improve and
strengthen the criminal justice system and reduce or prevent crime.
Conduct national demonstration projects that employ innovative or promising
approaches for improving criminal justice.
Develop new technologies to fight crime and improve criminal justice.
Evaluate the effectiveness of criminal justice programs and identify programs that
promise to be successful if continued or repeated.
Recommend actions that can be taken by Federal, State, and local governments as well
as by private organizations to improve criminal justice.
Carry out research on criminal behavior.
Develop new methods of crime prevention and reduction of crime and delinquency.
In recent years, NIJ has greatly expanded its initiatives, the result of the Violent Crime
Control and Law Enforcement Act of 1994 (the Crime Act), partnerships with other Federal
agencies and private foundations, advances in technology, and a new international focus.
Examples of these new initiatives include:
Exploring key issues in community policing, violence against women, violence within
the family, sentencing reforms, and specialized courts such as drug courts.
Developing dual-use technologies to support national defense and local law enforcement
needs.
Establishing four regional National Law Enforcement and Corrections Technology
Centers and a Border Research and Technology Center.
Strengthening NIJs links with the international community through participation in the
United Nations network of criminological institutes, the U.N. Criminal Justice Informa-
tion Network, and the NIJ International Center.
Improving the online capability of NIJs criminal justice information clearinghouse.
Establishing the ADAM (Arrestee Drug Abuse Monitoring) programformerly the Drug
Use Forecasting (DUF) programto increase the number of drug-testing sites and study
drug-related crime.
The Institute Director establishes the Institutes objectives, guided by the priorities of the
Office of Justice Programs, the Department of Justice, and the needs of the criminal justice
field. The Institute actively solicits the views of criminal justice professionals and researchers
in the continuing search for answers that inform public policymaking in crime and
justice.
To find out more about the National Institute of Justice,
please contact:
National Criminal Justice Reference Service,
P.O. Box 6000
Rockville, MD 208496000
8008513420
e-mail: askncjrs@ncjrs.org
To obtain an electronic version of this document, access the NIJ Web site
(http://www.ojp.usdoj.gov/nij/pubs-sum/181584.htm).
If you have questions, call or e-mail NCJRS.
U.S. Department of Justice PRESORTED STANDARD
Office of Justice Programs POSTAGE & FEES PAID
DOJ/NIJ
National Institute of Justice
PERMIT NO. G91

Washington, DC 20531

Official Business
Penalty for Private Use $300

Processing Evidence at the Scene

Completing the Scene Investigation

Documenting the Scene
Evaluating the Scene
First Responders
Establishing the Role of
 FINAL VERSION

FIRE AND EXPLOSION INVESTIGATIONS AND FORENSIC ANALYSES:

NEAR- AND LONG-TERM NEEDS ASSESSMENT

FOR STATE AND LOCAL LAW ENFORCEMENT

A REPORT FOR THE NATIONAL INSTITUTE OF JUSTICE (NIJ)

PREPARED BY THE NATIONAL CENTER FOR FORENSIC SCIENCE,

CARL CHASTEEN,

THE NATIONAL CENTER FOR FORENSIC SCIENCE,

AND

THE TECHNICAL/SCIENTIFIC WORKING GROUP

FOR FIRE AND EXPLOSIONS

FUNDED BY NIJ AWARD 2005-MU-MU-K044, SUPPLEMENT NO. 1

(UCF PROJECT NO. 24076017)

REVIEWED AND EDITED BY CARL CHASTEEN

JANUARY 6, 2008

FINAL EDITING COMPLETED BY NCFS

JANUARY 8, 2008

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 1

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Preface

Among the various types of criminal investigations and the varied specialties for forensic
analyses, crimes associated with arson and explosions are sometimes the most difficult
to process and analyze. The inherent destructiveness of the events often compromise
much of the evidence left behind. Ignitable liquids and many individual chemical
compounds are found as contaminants in various matrices from a fire scene. The
residues produced from the complete reaction of explosives are often gases. Those,
which are not gases, are often so common that their presence is not meaningful.

The International Association of Arson Investigators1, the National Fire Protection

Association2, the American Society for Testing and Materials3, the International
Association of Bomb Technicians and Investigators4, and the Technical/Scientific
Working Group for Fire and Explosions5, have a high level of interest and desire in
improving both the procedures at the scene and the capabilities of the laboratory. Yet,
the status of investigations and analyses are not uniform across the nation. Among
scene investigators, there is a desire to use more scientific and forensically sound
methods. Among laboratory analysts, there is a desire to be able to glean the most that
science can reveal about the evidence and to begin to approach the same levels of
individualization as has been achieved in DNA analysis.

Recognizing the current state of affairs and wishing to provide guidance, the National
Institute of Justice6 commissioned7 the National Center for Forensic Science8 to
prepare this report on the near- and long-term needs in Arson and Explosion analyses
and investigations. Through collaboration with numerous representatives of the
relevant communities and a survey instrument targeted to those communities this report
was prepared.

1
IAAI, http://www.firearson.com.
2
NFPA, http://www.nfpa.org.
3
ASTM, http://www.astm.org.
4
IABTI, http://www.iabti.org.
5
T/SWGFEX, http://www.ncfs.ucf.edu/twgfex/index.html.
6
NIJ, http://www.ojp.usdoj.gov/nij.
7
NIJ funded this project ($100,000) through Award No. 2005-MU-MU-K044,
Supplement No. 1 (FY-2006, $1,450,000), UCF Project No. 24076022. Mr. John Paul
Jones is the NIJ Program Manager for this award.
8
NCFS, http://www.ncfs.org.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 2

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Acknowledgements

The individuals responsible for preparing this report (and who are listed in Appendix A)
would like to thank the Director and Staff of the National Center for Forensic Science,
the Chair and Co-Chair of the Technical/Scientific Working Group for Fire and
Explosions, the various agencies who allowed their staff members to participate, as well
as the national and regional forensic science organizations that assisted with the
distribution of the survey instrument, including:

The American Academy of Forensic Science9

The American Society of Crime Laboratory Directors10
The International Association of Arson Investigators11
The International Association of Bomb Technicians and Investigators12
The Northeastern Association of Forensic Scientists13
The Midwestern Association of Forensic Scientists14
The Mid-Atlantic Association of Forensic Scientists15
The Southern Association of Forensic Scientists16
The Southwestern Association of Forensic Scientists17
Technical/Scientific Working Group for Fire and Explosion18

Numerous individuals who sent personal emails and letters to colleagues so that they
were aware of the survey are noted, but cannot be listed.

9
AAFS, http://www.aafs.org.
10
ASCLD, http://www.ascld.org.
11
IAAI, http://www.firearson.com.
12
IABTI, http://www.iabti.org.
13
NEAFS, http://www.neafs.org.
14
MAFS, http://www.mafs.net.
15
MAAFS, http://www.maafs.org.
16
SAFS, http://www.southernforensic.org.
17
SWAFS, http://www.swafs.us.
18
T/SWGFEX, http://www.ncfs.ucf.edu/twgfex/index.html.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 3

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

TABLE OF CONTENTS
1. Executive Summary 5-6
2. Background 7-8
3. Structure of Survey Instrument 9
4. Recommendations 10-11

I. Develop Analytical and Investigative Products, Equipment, and Technique

A. Technology Transfer and Development of New Instrumentation for 12-14
Field and Laboratory Detection and Analysis of Ignitable liquids and
Explosives
B. Expansion and Creation of Databases Relevant to Fire Debris and 15-16
Explosives Analysis
C. Alternatives and Improvements to Fire Debris Extraction Techniques 17-18
D. Improvements to Recognition, Sampling, and Preservation of Bombing 19-20
Evidence
E. Basic Instrumentation Improvement for Under-funded Laboratories 21-22
F. Access to Existing Federal Databases and Information on Fire and 23
Explosives Issues and Materials
G. Fire and Explosion Computer Modeling 24-25
H. Selected ILRC Reference Materials for Forensic Laboratories 26-27
I. Internal Standards Research 28
J. Development of Gasoline Taggants 29

II. Improve Communications, Contacts, and Cooperation 30-32

III. Enhance and Standardize Qualifications and Training

A. Near and Long Term Education and Training of Analysts and 33-41
Investigators
B. Fire Dynamics 42

IV. Expand Access to Existing Information on Instrumentation and 43-44

Equipment
V. Promote Consistency in Terminology, Methods, and Techniques
A. Glossaries for Fire and Explosions 45
B. Laboratory Submission Guidelines 46
C. Resources and Best Practices in Analysis and Investigations 47-48
D. Canine Use in Post-Blast Environments 49-50

VI. Appendices
A. Participants, State and Local (A.1 A.4) 51-55
B. Synopses of Survey Results 56-86
C. Tables of Survey Question Relationships to Planning Sub-Committees 87-89
D. Posted Survey and Vista Generated Survey Results 90>

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 4

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

1. Executive Summary

In March of 2007, the National Center of Forensic Science (NCFS) turned to six (6)
members of the Technical/Scientific Working Group in Fire and Explosion
(T/SWGFEX) to form a Needs Assessment Planning Panel. This group was
charged with preparing a report on the near- and long-term needs to the fire and
explosion investigation and forensic analysis communities. The six (6) planning
panel members were tasked to chair of one of the following planning sub-
committees:

Near- and long-term needs in Analytical Methods for Fire Debris Analysis

Near- and long-term needs in Analytical Methods for Explosives Analysis

Near- and long-term needs in Technology for Fire Debris Analysis and Fire
Scene Investigation

Near- and long-term needs in Technology for Explosives Analysis and

Explosive Scene Investigation

Near- and long-term needs in Training for Fire Debris Analysts and Forensic
Fire Scene Investigators

Near- and long-term needs in Training for Explosives Analysts and Forensic
Explosive Scene Investigators

Each Chair selected additional members to fill each of these committees. The group
reviewed two (2) surveys originally prepared by the Technical Working Group for
Fire and Explosions in 1999 and 2000. These surveys were used by the
T/SWGFEX organization to guide it in selecting projects and tasks that would be
relevant to the fire and explosion investigative and forensic analysis communities.
Using these as a template, one hundred (100) questions were formulated to create a
survey instrument for 2007.

The survey was distributed using the assistance of a variety of investigative and
analytical organizations. The results were collected in late September of 2007. The
Planning Panel and members of the T/SWGFEX Executive Board met in late
September of 2007 where they discussed the results of the survey. Using the
survey instrument as well as input from their committee members, the group drafted
their recommendations for this report. A process of drafts and reviews were used to
hone these into a final recommendation divided into five general themes. Some of
the themes could only be addressed through examination of multiple issues.

The themes and sub-divisions are:

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 5

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

I. Develop Analytical and Investigative Products, Equipment, and Technique

K. Technology Transfer and Development of New Instrumentation for 12-14
Field and Laboratory Detection and Analysis of Ignitable liquids and
Explosives
L. Expansion and Creation of Databases Relevant to Fire Debris and 15-16
Explosives Analysis
M. Alternatives and Improvements to Fire Debris Extraction Techniques 17-18
N. Improvements to Recognition, Sampling, and Preservation of Bombing 19-20
Evidence
O. Basic Instrumentation Improvement for Under-funded Laboratories 21-22
P. Access to Existing Federal Databases and Information on Fire and 23
Explosives Issues and Materials
Q. Fire and Explosion Computer Modeling 24-25
R. Selected ILRC Reference Materials for Forensic Laboratories 26-27
S. Internal Standards Research 28
T. Development of Gasoline Taggants 29

II. Improve Communications, Contacts, and Cooperation 30-32

III. Enhance and Standardize Qualifications and Training

C. Near and Long Term Education and Training of Analysts and 33-41
Investigators
D. Fire Dynamics 42

IV. Expand Access to Existing Information on Instrumentation and 43-44

Equipment
V. Promote Consistency in Terminology, Methods, and Techniques
E. Glossaries for Fire and Explosions 45
F. Laboratory Submission Guidelines 46
G. Resources and Best Practices in Analysis and Investigations 47-48
H. Canine Use in Post-Blast Environments 49-50

Within each theme and sub-division, there are recommendations providing specific
guidance and comment on:

Needs and Problems Identified

Suggested Solutions

Implementation Strategies

It is hoped that these recommendations will provide direction on methods,

technologies, and training identified as being most needed to meet the near and long
term needs of those who both investigate fires and bombings as well as the
scientists who provide forensic analyses.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 6

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

2. Background

In 1998, the National Center for Forensic Science19, a National Institute of Justice20
program hosted by the University of Central Florida21, organized a National Needs
Assessment22 meeting for fire and explosion investigators and analysts. Following
this meeting, NCFS used NIJ funds to create two (2) Technical Working Groups
(TWGs) responsible for writing two (2) guidebooks. NIJ in 2002 published the two
(2) documents as research reports: Fire and Arson Scene Evidence: A Guide for
Public Safety Personnel23 and A Guide for Explosion and Bombing Scene
Investigation24. A large contingent of the individuals attending this National Needs
Assessment and who wrote these reports merged under the guidance of NCFS to
form the Technical/Scientific Working Group for Fire and Explosions (T/SWGFEX).

This Working Group is unique among the various Technical and Scientific Working
Groups in that it is composed of both laboratory scientists in fire debris and
explosives analysis as well as fire and explosives scene investigators. Since then,
the mission of T/SWGFEX has been:

To establish and maintain nationally accepted programs for the forensic

investigation of fire, arson, and explosion scenes and devices. Further, to
promote and maintain dialogue among personnel in the public safety and legal
communities.

To achieve this mission, its various sub-committees have written and proposed
standards for analysis, created modules for training, initiated and maintained a
national database and repository for ignitable liquids, and organized symposia.
T/SWGFEX chose these projects based on the results from one of its first projects.
In 1999 and 2000, T/SWGFEX prepared and issued surveys to both laboratory25 and

19
NCFS, http://www.ncfs.org.
20
NIJ, http://www.ojp.usdoj.gov/nij.
21
UCF, http://www.ucf.edu.
22
August 7-8, 1997 (Orlando, Florida).
23
http://www.ncjrs.gov/pdffiles1/nij/181584.pdf.
24
http://www.ncjrs.gov/pdffiles1/nij/181869.pdf.
25
Survey of Forensic Science Laboratories by the Technical Working Group for Fire and
Explosions (TWGFEX), Forensic Science Communications, January 2000 (Volume 2.
Number 1), http://www.fbi.gov/hq/lab/fsc/backissu/jan2000/allen.htm.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 7

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

scene26 experts in fire and explosion investigations. These surveys provided

comprehensive overviews of the state of fire and explosives analyses and
investigative issues.

In 2007, NCFS was again charged by NIJ to assess the near- and long-term needs
for arson (i.e., fire debris) analysis, explosives analysis, fire scene investigation, and
bombing investigations. Its focus was on the analytical methods, technology, and
training necessary to improve those fields. To achieve this task, NCFS turned to
T/SWGFEX.

The experts from T/SWGFEX, as well as other organizations, were selected to

expand the base of expertise within each committee. The panel began by
discussing its task and decided that the original T/SWGFEX surveys should be a
logical place from where to begin. The panel and their committee members worked
to create a comprehensive survey that would assess the needs of the analytical and
investigative communities. This survey was posted via Internet to members of
relevant associated groups.

The survey was composed of one hundred (100) questions in eleven (11)
categories. After the deadline for response to the survey, the results of the survey
were analyzed and the various committees made their recommendations, which
were coalesced into a comprehensive list of recommendations. This report contains
those recommendations as well as additional information on how the
recommendations were derived, the survey instrument and its raw results, and
interpretation of those results.

26
Results of TWGFEX Scene Survey (http://www.ncfs.ucf.edu/twgfex/docs/
Scene+Survey+Results+Report.pdf).

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 8

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

3. Structure of the Survey Instrument

The survey instrument contained one hundred (100) questions sub-divided into
eleven (11) parts:

Demographics and General Questions

Professional Development

Fire Debris Analysis Casework

Fire Debris Analysis Analytical Methods

Fire Debris Analysis Data Interpretation

Explosives Analysis Casework

Explosives Analytical Methods

Explosives Data Interpretation

Fire Scene Investigation

Explosives Scene Investigation

Laboratory Research Topics

Most questions related to more than one of the six (6) original planning panel sub-
committee topics. Tables showing these relationships are included in the appendix.
The survey was formatted by the Vista Survey System to an instrument, which
could be posted, completed, and submitted via Internet. NCFS representatives and
members of the various planning panels made contact with professional
organizations who agreed to post a link to the survey on their websites and to alert
their members.

The survey was posted for most of the month of August 2007 and the first week of
September 2007. At the end of the posting period, the Vista Survey System
prepared a report, which a committee of Planning Panel members and T/SWGFEX
reviewed. The committee felt that the report by Vista Survey System was helpful,
but felt that additional information could be derived through a closer examination of
the raw data. Using Statistical Package for the Social Sciences (SPSS) software,
a member of the Planning Panel was able to re-format many of the results to the
survey questions so that committee members could better understand respondents.

For some questions, it was obvious from the number of responses that more than
the target community had provided input. Separating responses by the primary job
category indicated by a respondent allowed the committee to view responses by
specific job category rather than the more general response.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 9

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

4. Recommendations for the Near- and Long-Term Needs In Fire and Explosion
Analysis and Investigations

The 2007 T/SWGFEX Needs Assessment Survey27 have identified five (5) general
areas/themes which address the near- and long-term needs of Fire and Explosion
Analysts and Investigators. A careful review reveals that many of the issues are
intricately linked; some give greater emphasis to technology and methods while
others emphasize education and training. Where a new technology is developed,
the issue of training will follow closely behind. The five (5) general themes included
(from I through V):

I. Develop Analytical and Investigative Products, Equipment, and Technique

A. Technology Transfer and Development of New Instrumentation for Field and

Laboratory Detection and Analysis of Ignitable liquids and Explosives

B. Expansion and Creation of Databases Relevant to Fire Debris and Explosives

Analysis

C. Alternatives and Improvements to Fire Debris Extraction Techniques

D. Improvements to Recognition, Sampling, and Preservation of Bombing

Evidence

E. Basic Instrumentation Improvement for Under-funded Laboratories

F. Access to Existing Federal Databases and Information on Fire and Explosives

Issues and Materials

G. Fire and Explosion Computer Modeling

H. Selected ILRC Reference Materials for Forensic Laboratories

I. Internal Standards Research

J. Development of Gasoline Taggants

27
NIJ funded the 2007 TWGFEX Needs Assessment via its FY-2006 2005-MU-MU-
K044, Supplement No. 1 award to NCFS (UCF Project No. 24076017).

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 10

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

II. Improve Communications, Contacts, and Cooperation

III. Enhance and Standardize Qualifications and Training

IV. Expand Access to Existing Information on Instrumentation and Equipment

V. Promote Consistency in Terminology, Methods, and Techniques

A. Glossaries for Fire and Explosions

B. Laboratory Submission Guidelines

C. Resources and Best Practices in Analysis and Investigations

D. Canine Use in Post-Blast Environments

Each of these may be further subdivided into sub-topics. All have been proportioned
between the three following considerations:

1. Needs and Problems Identified

2. Suggested Solution(s)

3. Implementation Strategies

Participants in the Needs Assessment Planning Panel and T/SWGFEX (see

Appendix A) were polled during the formulation of these recommendations in order
to prioritize their order of presentation within the report. The primary Survey
Questions to which each theme derived its response is noted at the beginning of
each thematic grouping.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 11

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

I. Develop Analytical and Investigative Products, Equipment, and Techniques

Survey Questions 12, 15, 18, 19, 20, 21, 22, 26, 27, 29, 30, 31, 54, 55, 60, 62,
66, 73, 74, 75, 76, 88, 89, 90, 91, 92, 93, 94, 94, 96, 97, 98, 99, and 100

A. Technology Transfer and Development of New Instrumentation for Field and

Laboratory Detection and Analysis of Ignitable liquids and Explosives

1. Needs and Problems Identified

a. Both Fire Debris and Explosives Analysis have benefited from the transfer
of technology from other forensic or analytical applications.

b. In some instances, the nuances of separating the analyte from the

background interferences have not permitted technology transfer.

c. Advances in analytical chemistry, digital imaging, robotics, and data

recording are presenting new tools and technology every day.

d. Forensic Laboratories are confronted with workloads and budgets that do

not allow them to explore and validate these new technologies and thus
the benefits of technology transfer are often delayed.

e. Competitive grants to research and apply new technology to the analysis

of fire debris and explosives and the processing and sampling of fire and
post-blast scenes are needed.

f. The specific areas of interest described in the survey instrument and

between planning panel members are:

1) Development and validation of instrumentation that will be capable of

indicating the probability match of ignitable liquids recovered from a fire
scene to ignitable liquids on the person or in the possession of a
suspect or victim. In short, the development of DNA analysis for fire
debris is desired. Examples of instrumentation currently used in other
analytical areas that may have an application are: two-dimensional gas
chromatography with mass spectral detection (GC x GC/MS); Stable
Isotope Ratio Mass Spectroscopy; Gas Chromatography with tandem
mass spectral detection (GC/MSn) or Fourier Transform Ion Cyclotron
Resonance Mass Spectroscopy.

2) Development and validation of expert system software for GC/MS

that can rapidly compare data from case samples with a reference
library of ignitable liquid standards to form probability match lists.
Examples of data from the reference standards that can be cross-

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 12

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

referenced and compared with unknowns are: target compound

retention time, target compound mass spectra, target compound ratios,
single ion profiles, and summed ion profiles.

3) An expert system that could be linked between laboratories willing to

share their libraries would be an advanced application of this project.

4) Development and validation of additional and new technologies and

methods that can identify both inorganic and organic explosives using,
but not limited to: Time of Flight (TOF) GC/MS; Raman Spectroscopy;
High Performance Liquid Chromatography-Fourier Transform Infrared
Spectroscopy (HPLC-FTIR); Capillary Electrophoresis (CE); CE with
Mass Spectral Detection (CE/MS); High Performance Liquid
Chromatography with Mass Spectral Detection (HPLC/MS);
Atmospheric Ionization Mass Spectrometry; or Ion Chromatography-
Mass Spectrometry (IC-MS).

5) Development and validation of derivatization procedures and methods

for alternative methods of analysis. Not all laboratories possess the
same pieces of equipment and technology. Some instruments can
confirm the identification of an analyte, so long as it is the type of
molecule that the instrument can see. This would seek to determine
standard methods and techniques for converting certain analytes from
one form to another so that alternate instrumentation may be used.
For example: conversion of cations to organic salts for analysis by
GC/MS or the use of ligands in CE/MS.

6) Continue development of field portable (hand-held) instruments for

field analysis of explosives, explosive residues and components, and
ignitable liquids. Standardize development of new methods and
techniques for field analysis using existing hand-held instrumentation.
Candidates in limited use or with significant potential for this type of
development include: Raman Spectroscopy; X-Ray Florescence; Micro
Cantilever Sensors; Ion Mobility Spectroscopy; Differential Mobility
Spectroscopy, Chemiluminescent Detection (EGIS); and GC/MS.

7) Development, testing, and validation of field portable instruments or

sensors for explosives, mounted on existing robotic platforms so that
they, and not personnel, are sent into hot zones to examine and
report on the presence of ignitable liquids, or explosives. These field
instruments may be capable of either rendering an analysis on site or
sending the raw data via wireless communication to a remote
laboratory for examination.

8) Develop, test, and validate tools for investigators at a scene such as

an affordable hand-held x-ray unit that could allow investigators to
see the interior of melted and deformed items. Another example is

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 13

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

the development of instruments and tools for scene documentation and

laser mapping using GPS markers with the capability of having the
data automatically downloaded into computer modeling software (FDS
for Fire modeling).

9) Development, testing, and validation of scene toolboxes and training

kits along the line of the Israeli or Australian models which allow their
field agents to process the scene quickly and efficiently.

2. Suggested Solutions

a. NIJ grant solicitations for research into the development of new

instrumentation, technology, methods, and sensors for the analysis of fire
debris and explosives and the processing and sampling of fire and post-
blast scenes as described above.

b. The implementation of technology transfer from techniques and methods

not currently used in fire debris or explosion analysis and field
investigations would be given preference.

c. The final reports from any funded projects must completely describe how
the new technology is applied to fire or explosion analysis or scene
investigations and provide comparative data of the new technologys
efficiency versus the existing technology as well as the cost effectiveness
of the new technology.

3. Implementation Strategy

a. Utilize T/SWGFEX to provide a pool of subject matter experts to review

the solicitations and grant application proposals from which they would
provide recommendations to NIJ for final consideration.

b. Once projects are selected, funded, and complete, ensure that the results
are delivered to the relevant community through publication of the
research and/or presentation at professional seminars and symposia.

c. Provide a link to the research results/papers through the T/SWGFEX

Website http://ncfs.ucf.edu/twgfex/index.html.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 14

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

B. Expansion and Creation of Databases Relevant to Fire Debris and Explosives

Analysis

1. Needs and Problems Identified

a. The existing Ignitable Liquids Reference Collection (ILRC,

http://ilrc.ucf.edu/search.php) created by T/SWGFEX contains over 440
ignitable liquids. Each has been analyzed by Gas Chromatography-Mass
Spectroscopy and this data as well as manufacturers and chemical
information is available in a publicly accessible Website. Each item is also
available as a physical sample that can be sent to a laboratory in order to
analyze the ignitable liquid on their instrumentation.

b. More materials such as mixtures of ignitable liquids, various levels of

deterioration of ignitable liquids, matrix contributions of ignitable liquids,
and pyrolysis products are needed to expand the database.

c. T/SWGFEX is currently engaged in the construction of a similar database

for explosives where data from various explosives analyzed by different
instruments are also in a searchable format. Due to security issues, the
content and method of access to this database requires additional
consideration.

d. Additionally, the question of the compositional consistency between pre-

and post-blast explosives is not fully known.

2. Suggested Solutions

a. Expand the ILRC by adding more samples of different ignitable liquids,

mixtures, and various deterioration curves.

b. Promote and encourage the use of the database by analysts.

c. Continue the T/SWGFEX project to design, create, and post a similar

explosives database (without a corresponding reference collection of
materials for purchase).

d. Submit an NIJ grant proposal to study the compositional consistency of

pre- and post-blast explosives in various environments and add the data
to the explosives database.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 15

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

3. Implementation Strategy

a. Increase funding to the T/SWGFEX Ignitable Liquids Reference

Collection (ILRC) sub-committee to bring the members of the groups
together more frequently to review and categorize data, design database
improvements, and plan for further expansion.

b. Increase funding to NCFS to add additional staff for preparing ignitable

liquid mixtures, deteriorated levels of ignitable liquids, extraction of
matrices, and preparation of pyrolysis products.

c. Increase funding to purchase more ignitable liquids, matrices,

instrumentation, and storage materials.

d. Increase the funding to the T/SWGFEX Explosives Database sub-

committee to bring the members of the group together to complete their
review and categorization of the data. Then the group would design the
final version of the database for implementation.

e. Increase funding to purchase instrumentation, explosives, range time,

personal protective equipment, and storage materials.

f. Increase the funding to the solicitations in order to add additional staff for
analysis of explosives and explosives residues and database input and
maintenance.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 16

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

C. Alternatives and Improvements to Fire Debris Extraction Techniques

1. Needs and Problems Identified

a. Many of the ASTM methods used to extract fire debris, particularly

Passive Headspace Concentration ASTM E1412, require the use of an
adsorbent and a solvent. The adsorbent used most often in the United
States is activated charcoal/carbon membrane. The solvent most often
employed in desorbing the adsorbent is carbon disulfide due to its extreme
efficiency in desorbing the trapped ignitable liquids.

b. Activated charcoal/carbon of the correct quality and orientation is only

available from a limited number of sources.

c. Carbon disulfide is a dangerous and risky solvent (e.g., flammable,

explosive, toxic, carcinogenic, etc.). Less dangerous alternatives such as
diethyl ether, pentane, and blends have not proven to be as efficient as
carbon disulfide in their desorption ability and may have their own
hazards.

d. Active Forensic Laboratories have little time nor resources for conducting
experimental casework to find alternatives to the adsorption matrix or the
desorption solvent/procedure.

e. Projects to examine, document, and assess alternate adsorption media

and desorption solvents and procedures are needed. This would increase
the supply and availability of adsorption media and reduce the risk of or
eliminate the use of dangerous chemicals in the desorption process.

2. Suggested Solution

a. NIJ grant solicitations for projects to explore alternatives to activated

charcoal/carbon membranes as adsorption media focusing on both the
efficiency of adsorption and the availability of the alternate media from a
variety of resources.

b. NIJ grant solicitations for projects to explore alternatives to the use of

chemical solvents currently used in desorbing adsorption media, focusing
both on the efficiency of desorption and the reduction of hazards
associated with the use of solvents.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 17

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

c. NIJ grant solicitations for projects to explore alternatives to the use of

either adsorption media or desorption solvents such as direct vapor
headspace acquisition and injection, thermal desorption media, or
cryogenic focusing.

d. The final reports from any funded projects must completely describe the
alternative technique and provide comparative data of the following: the
new technologys efficiency versus the existing technology; the cost
effectiveness of the new technology; and how the new technology will
address the need to archive any ignitable liquids extracted from the
samples for later analyses. The implementation of technology transfer
from techniques and methods not currently used in fire debris analysis
would be encouraged.

3. Implementation Strategy

a. Utilize T/SWGFEX to provide a pool of subject matter experts to review

the solicitations and grant application proposals from which they would
provide recommendations to NIJ for final consideration.

b. Once projects are selected, funded, and complete, ensure that the results
are delivered to the relevant community through publication of the
research and/or presentation at professional seminars and symposia.

c. Provide a link to the research results and papers through T/SWGFEX

http://ncfs.ucf.edu/twgfex/mission.html.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 18

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

D. Improvements to Recognition, Sampling, and Preservation of Bombing Evidence

1. Needs and Problems Identified

a. A bombing scene contains the remains and residues of the explosive

device. Unlike most other crime scenes the evidence has been forcefully
dispersed over a wide area. Determination of the optimum areas for
collection of samples is often difficult.

b. The selection of evidence must also consider the container in which the
explosive residues will be preserved until they are to be tested. The
various available containers are not the same. Some are porous and will
permit the loss of volatile components. Some are so non-porous that
volatile components will off-gas and build pressure in the container. Some
are caustic and can corrode and breach metal or paper containers. In
addition, some residues may dissolve plastic. The decision of which
container to use to preserve the evidence is one of the first that can
greatly affect the eventual ability of the laboratory to test the evidence and
must be made with great care.

c. New explosives present new challenges. Triacetonetriperoxide (TATP) is

becoming the explosive of choice with terrorists and anarchists due to the
simplicity of preparing it. Its volatility, shock sensitivity, and tendency to
succumb to rapid entropy are issues that affect finding and preserving it.

d. Research and training into the optimum areas within a bombing scene for
selection of a sample and into the optimum containers for the preservation
of various explosives is needed.

e. Research and training into the proper methods for preservation of TATP
and other volatile explosives residues is needed.

f. A concise guide for the use and limitations of field instruments and
presumptive identification kits would assist investigators in the selection of
samples for more intensive laboratory testing.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 19

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

2. Suggested Solution

a. NIJ grant solicitations for research into probability sampling in a bombing

scene seeking to determine the positive hit return rate depending on
distance from the crater and the value of various witness surfaces.

b. NIJ grant solicitations into determining the optimum containers for

preservation of various explosive residues measuring the retention of the
residue within the container without deterioration of the residue or
container.

c. NIJ grant solicitations into the hazards and potential for preservation of
peroxide based and highly volatile, unstable, or reactive explosives. Can
it be done? How? In addition, for how long?

d. Development and distribution of a guide to the proper use and limitations

of field instruments and presumptive testing kits.

e. The final reports from any funded projects must completely describe how
the new technology is applied to fire or explosion analysis or scene
investigations and provide comparative data of: the new technologys
efficiency versus the existing technology as well as the cost effectiveness
of the new technology.

3. Implementation Strategy

a. Utilize T/SWGFEX to provide a pool of subject matter experts to review

the solicitations and grant application proposals from which they would
provide recommendations to NIJ for final consideration.

b. Utilize T/SWGFEX to research and create a guide to the proper use and
limitations of field instruments and presumptive testing kits. This may
require sufficient funds for obtaining the kits (purchase, rental, or lease) as
well as travel and lodging for the researchers to meet.

c. Once projects are selected, funded, and complete, ensure that the results
are delivered to the relevant community through publication of the
research and/or presentation at professional seminars and symposia.

d. Provide a link to the research results/papers through T/SWGFEX at

http://ncfs.ucf.edu/twgfex/mission.html.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 20

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

E. Basic Instrumentation Improvement for Under-Funded Laboratories

1. Needs and Problems Identified

a. A few laboratories are using gas chromatography with flame ionization

detection (GC/FID) for analysis of fire debris. While this is certainly an
adequate technology, it is not the technology of preference as seen in this
survey or the results from the various proficiency testing organizations.
Currently, fire debris analysis primarily utilizes gas chromatography with
mass spectral detectors (GC/MS) in the analysis of extracts from fire
debris. The nature of ignitable liquids and the interference chemicals co-
extracted from the background matrices can often only be determined by
the use of GC/MS.

b. Smaller, under funded laboratories often cannot afford the approximately

$100,000 to purchase a GC/MS and train personnel. They must rely on
the less expensive technology available with GC/FID. GC/FID, while valid
for many samples, cannot provide the level of efficiency and accuracy of
analysis as provided by GC/MS on those samples that are borderline.
Additionally, the identification of some ignitable liquid mixtures as well as
single components requires mass spectral data.

c. Current Coverdell grants28 are often targeted to different forensic

disciplines or are not sufficient to cover the required costs.

d. In order to provide the highest level of analysis currently available,

laboratories performing fire debris analysis should be using GC/MS.

2. Suggested Solutions

a. Establish a funding source whereby a maximum of twenty (20)

laboratories per year for three years can receive $85,000 toward the
purchase of a GC/MS and $5,000 to cover the training (registration,
lodging, and travel) of two personnel with the stipulation that 100% of its
fire debris samples must be analyzed on the instrument.

28
Coverdell Forensic Science Improvement Grant Program, http://www.ojp.usdoj.
gov/nij/topics/forensics/nfsia.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 21

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

b. Secure an additional $10,000 to be provided to each grantee to purchase

extended preventive maintenance and repair service agreements with the
instrument manufacturers.

3. Implementation Strategy

a. Utilize T/SWGFEX to assist NIJ with the creation of the grant application
and with screening and recommendations of grantees.

b. Utilize the existing GC/MS of Fire Debris as the primary training venue for
the grant recipients to send at least two persons from each laboratory for
training.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 22

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

F. Access to Existing Federal Databases and Information on Fire and Explosives

Issues and Materials

1. Needs and Problems Identified

a. Federal agencies, particularly the Federal Bureau of Investigations (FBI,

http://www.fbi.gov), the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (BATFE, http://www.atf.treas.gov), and the United States Fire
Administration (USFA, http://www.usfa.dhs.gov), have and maintain
various databases and reference material collections on fires and
explosions.

b. Local and state agencies desire access to these databases in order to be

able to cross-reference the items they find in casework with the larger
reference collection of the federal agencies. They can take the data they
develop on the composition of various materials and compare their results
to the federal reference materials. The issue is that more often than not,
these databases and materials are not accessible to the local and State
agencies. In some instances the databases and materials are available,
but not through a single resource.

2. Suggested Solutions

a. Use the resources of NIJ to encourage a meeting between the federal

agencies and NCFS with representatives of T/SWGFEX to discuss the
mechanism of how certain individuals may be permitted access to the
various databases and materials.

b. Use the resources of NIJ to arrange a meeting between the United States
Fire Administration and the BATFE to discuss placing links to the National
Fire Incident Reporting Systems reports on fire in the United States and
the Bomb Data Center.

3. Implementation Strategy

a. Convene a meeting between the Director of NCFS, NCFS Technical

Managers and staff, Chair of T/SWGFEX, Chairs of appropriate
T/SWGFEX sub-committees, and representatives of the FBI, BATFE, and
USFA to determine and agree on the databases and materials to be
accessed.

b. Determine/define the limitations and modes of access, which would

maintain the appropriate levels of security.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 23

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

G. Fire and Explosion Computer Modeling

1. Needs and Problems Identified

a. Computer fire modeling has improved significantly since its inception. Its
key limitation has always been the ability of the program to factor in all the
various parameters and the accuracy of the parameters. Many of the
references needed (e.g., heat flux, specific gravity, thermal inertia, heat
transfer rate, etc.) may exist in various resources. They need to be
accumulated into a single source. For many materials, this data does not
exist.

b. Obtaining this data is beyond the budget and capabilities of most state or
local agencies. Federal agencies such as the BATFE Fire Research
Laboratory and the National Institute of Science and Technology (NIST,
http://www.nist.gov) may have the equipment and laboratory space, but
may need additional personnel and access to the materials themselves.
Essentially what is needed is a facility with a cone calorimeter to burn
items such as different brands and types of chairs, sofas, clothing,
mattresses, tables, furnishings, etc.). Once the data is collected, it would
be entered into a searchable database. This would allow investigators
performing computer fire modeling to have access to more data to
estimate the fuel load and model the fire.

c. Once the data from reference materials are available, the parameters
specific to a scene must be input. Scene mapping tools, which could
automatically input the data at the scene, may permit on-scene modeling,
which would allow investigators to assess the validity of their observations
and information from interrogations. If this was possible while on-scene, it
would allow the investigator to acquire more precise and accurate
information from which a scientifically based conclusion may be drawn.

d. Similar modeling programs and research has not been completed for the
dynamics of an explosion. Basic research and modification of some fire
modeling software may be possible. If it can be developed this would
prove to be an advance for the timeliness and accuracy of post-blast
investigations.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 24

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

2. Suggested Solutions

a. Establish a partnership between NCFS, T/SWGFEX, BATFE, and NIST so

determine the feasibility of conducting the necessary testing at the BATFE
or NIST facilities and to determine if T/SWGFEX members could be
utilized to perform any assistance during the actual testing.

b. Use the resources of T/SWGFEX to create and input data into a single
source database as described.

c. NIJ grant solicitations for development or adaptation of scene

documentation cameras and instruments so that collected data can be
directly loaded into computer modeling software.

d. NIJ grant solicitations for the development or adaptation for fire modeling
programs to Explosion Modeling Programs.

3. Implementation Strategy

a. Utilize T/SWGFEX to provide a pool of subject matter experts to review

the solicitations and grant application proposals from which they would
provide recommendations to NIJ for final consideration.

b. NIJ would provide funds for the purchase of materials (e.g., furnishings,
floor coverings, clothing, other objects, etc.) to be burned in order to
collect data. It may also include travel and lodging for the researchers to
assist at BATFE Fire Research or NIST.

c. Utilize T/SWGFEX to research and create the searchable database of fire

modeling data. This may require sufficient funds for obtaining reference
materials, software, and or hardware, as well as travel and lodging for the
researchers to meet.

d. Once projects are selected, funded, and completed, ensure that the
results are delivered to the relevant community through publication of the
research and/or presentation at professional seminars and symposia.

e. Provide a link to the database and research results/papers through the

T/SWGFEX Website.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 25

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

H. Selected ILRC Reference Materials for Forensic Laboratories

1. Needs and Problems Identified

a. Laboratories performing fire debris analysis must compare the data

generated by submitted evidence to data generated by reference
standards analyzed on their own instrumentation in order to follow the
guidance of the American Society for Testing and Materials E1618.

b. The survey revealed that some laboratories are not following this basic
precept for quality and proper analysis of ignitable liquids.

c. For an individual laboratory to create a collection of ignitable liquids

(including all the various classifications and ranges of ASTM E1618
described ignitable liquids) the expense would be significant and storage
would become a problem. Not only would storage space be needed, but
also it would impose a requirement for additional flammable and
combustible storage cabinets to be purchased and installed.

d. This may be an untenable expense for some local and state laboratories.

2. Suggested Solutions

a. The NIJ with the National Forensic Science Technology Center (NFSTC,
http://www.nfstc.org) has attempted to address this by sending fire debris
validation kits to various laboratories, which included ignitable liquids from
a commercial vendor.

b. For laboratories without the basic collection of ignitable liquids, provide a

selection of twenty reference standards from the ILRC (which will include
one ASTM Test Mix, one Gasoline, and three each [light, medium, and
heavy] from the remaining ASTM classes) to be prepared and transferred
to a maximum of 200 Forensic Laboratories.

c. Of those 200 laboratories selected, some may have the basic ignitable
liquid resources and would prefer to use the twenty new standards to
expand their libraries.

d. T/SWGFEX will prepare an application to be completed by forensic

laboratories wishing to receive this collection of reference materials.
T/SWGFEX will prepare a select panel of forensic laboratory directors to
review the applications and select the laboratories to which the reference
collections will be sent.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 26

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

3. Implementation Strategy

a. Identify appropriate NIJ solicitation to fund the cost of preparing the

applications, distributing the applications, reviewing the applications,
preparing the reference standards, and shipping the reference materials.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 27

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

I. Internal Standards Research

1. Needs and Problems Identified

a. Some forensic laboratories add a chemical as an internal standard to fire

debris samples or the solvent used to extract the fire debris.

b. This ostensibly provides quality assurance information that is useful.

c. Some laboratories do not follow this procedure arguing that adding even
an inert material to a sample changes the sample.

d. Objective research needs to be conducted to establish whether this

procedure adds or detracts from the value of analyses.

2. Suggested Solutions

a. Solicit applications for grants to study this practice and issue a report.

3. Implementation Strategy

a. Solicit grant proposals via the normal NIJ process to specifically, research
and report on the value and role of the use of internal standards in fire
debris analysis.

b. Once completed, post the report on the NIJ Website and link to
http://ncfs.ucf.edu/twgfex/mission.html, the T/SWGFEX Website.

c. Have the research presented as a paper to the T/SWGFEX symposium,

The American Academy of Forensic Sciences (AAFS, http://www.aafs.org)
annual meeting, or other relevant scientific meetings29 and symposia.

29
Mid-Atlantic Association of Forensic Scientists (http://www.maafs.org), Midwestern
Association of Forensic Scientists (http://www.mafs.net), Northwest Association of
Forensic Scientists (http://www.nwafs.org), Southern Association for Forensic Scientists
(http://www.southernforensic.org), and the Southwestern Association of Forensic
Scientists (http://www.swafs.us).

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 28

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

J. Development of Gasoline Taggants

1. Needs and Problems Identified

a. The goal of most forensic testing is to associate evidence from a scene

with evidence from the possession of a suspect.

b. Ignitable liquids do not lend themselves to this type of comparison as they

are usually extracted from debris or matrices after they have been burned
and weathered.

c. As a result, the extracted ignitable liquid will have lost many of its
components and will have added compounds pulled from the matrix and
the burning of the matrix (pyrolysis products).

d. Current instrumentation does not sufficiently characterize the remaining

compounds so that probability matches between samples can be made.

2. Suggested Solutions

a. Convene a meeting with NIJ, T/SWGFEX and representatives from

academia, the petroleum refiners, and petroleum marketers to discuss the
potential of adding combinations of inert and stable chemicals with high
boiling points that can be added to gasoline as a marker of its
manufacturer or distributor.

b. Obtain agreement from gasoline refiners and marketers on participation in

this program as a way of assisting the forensic community and fighting
crime.

3. Implementation Strategy

a. If determined to be feasible, use the group to design an implementation

strategy by first determining the markers to be used, the amounts to be
incorporated, the analytical methodology for seeing them (which may be
different from the GC/MS of ignitable liquids) and assigning them to
refiners and marketers.

b. Encourage and applaud refiners and marketers.

c. Monitor compliance with this voluntary program by having samples

submitted to a laboratory specified by S/TWGFEX for analysis.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 29

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

II. Improve Communications, Contacts, and Cooperation

Survey Questions 10, 12, 15, 16, 24, 68, 69, 84, 85, 86, and 87.

1. Needs and Problems Identified

a. Currently, most professionals in fire and explosion investigations and

analyses are segmented into communities within either the investigative or
the laboratory subgroup. There is additional segmentation of the sub-groups
by specialties and geography. All of these divisions and convoluted pathways
give rise to unsatisfactory levels of communication and can cause some
practitioners to become isolated.

b. These professionals have identified a need for cross-communication. Among

the reasons, is a need to determine the expertise of other members across
and within the forensic science and investigative communities. They also
need to contact other professionals in the field to promote finding solutions to
problems and gathering information. This information exchange enhances
the professionalism and competence of the individual. This information may
sometimes be sensitive and should not be freely accessible to all members of
the public. Direct contact allows for a greater exchange of pertinent
information on techniques, methods, and equipment.

c. Some forensic laboratories having a small one-person fire debris or

explosives analysis section may not have a second expert on site available to
perform peer review of casework, a necessary component of providing quality
analyses.

2. Suggested Solutions

a. A centrally available listing of professionals in fire or explosion scene

investigation and fire or explosion debris analysis is needed to provide a
secure method of contact between the members of the relevant communities.
This will enhance communication between the members of the scientific and
investigative communities and promote a free exchange of ideas.

b. This listing should include curriculum vitae of the individuals areas of

expertise as well as contact information in the event that one-to-one contact is
desired.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 30

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

c. The contact list should also indicate if the listed professional would be
available to assist other professionals in specific areas such as peer review of
casework.

d. An annual meeting/symposium, which would offer training in multiple topics of

fire debris and explosives analysis and fire and post-blast investigations.

3. Implementation Strategies

a. Promote and continue to subsidize the Technical Working Group for Fire and
Explosives/Scientific Working Group for Fire and Explosions (T/SWGFEX)
organization, which has an existing membership of leading experts from
forensic analytical laboratories and scene investigations in both fires and
explosions.

b. Promote the evolution of T/SWGFEX so that it will move from a subsidized

subsistence to one that can support itself.

c. Promote attendance at annual T/SWGFEX symposia and enhance its quality

through targeted presentations on topics, resources, and experts defined in
other sections of this report.

d. The National Institute of Justice (NIJ) should facilitate T/SWGFEX in

creating and posting a comprehensive listing of professionals in the field(s) of
fire and explosion analysis and investigation with curriculum vitae of expertise
and contact information.

e. Poll the professionals listed to determine if they would be willing to provide

advice and direction without a financial cost. This could be for scientific peer
review of data or for the exchange of experience and/or opinions on the utility
of equipment. The core to begin this project should be T/SWGFEX members
as they are already part of an organization, which has at its core the desire to
merge the two communities.

f. T/SWGFEX would establish a sub-committee to design and build this list and
ensure the accuracy of the information concerning the people on it.

g. The T/SWGFEX committee would design the template for listing a

participants professional qualifications.

h. This would effectively create a clearinghouse of analysts willing to perform

peer review for those laboratories not currently doing peer review.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 31

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

i. Once listed, the individual would be given access to the T/SWGFEX list
serve. Listing would not automatically place them as members of
T/SWGFEX.

j. Other individuals and organizations would be contacted through their

publications and meetings to explain the benefits of being listed.

k. This already existing list serve would provide a free Internet link for
professionals. This strategy would only require its expansion and publication
of its existence once the pertinent protocols are established.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 32

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

III. Enhance and Standardize Qualifications and Training

Survey Questions 7, 8, 10, 11, 12, 32, 56, 57, 59, 71, 72, 88, and 89.

A. Near and Long Term Education and Training of Analysts and Investigators

1. Needs and Problems Identified

a. Formal Education Assistance

1) Investigators and analysts who seek to better themselves and become

more adept at their profession are often in a precarious position.

a) Most work full time and are at a point in their lives where they do
not have the additional resources to pay for a formal degree even if
they can find the time.

b) Some are located in areas where no provider of a relevant degree

is available.

c) Some on-line degrees are available, but will not be subsidized by

their employers and the individual is back to the problem of
resources.

2) Subsidy of individuals seeking formal degrees has been attempted in

the past by some governments only to find that some individuals
abused the program.

3) Safeguards would be necessary to mitigate this additional

consideration.

b. Symposia and Seminars

1) Scene Investigators

a) International Association of Arson Investigators (IAAI,

http://www.firearson.com) annual meeting.

b) International Association of Bomb Technicians and Investigators

(IABTI, http://www.iabti.org) annual meeting.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 33

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

2) Analytical Chemists and Forensic Scientists

3) American Academy of Forensic Sciences (AAFS, http://www.aafs.org)

annual meeting.

4) Pittsburgh Conference and Exposition on Analytical Chemistry and

Applied Spectroscopy (Pittcon, http://www.pittcon.org)

5) Other National/Regional forensic science conferences, meetings, and

symposia30.

6) Investigators/Analysts

7) The only symposia which have deliberately attempted to blend

presentations germane to investigators and analysts from both the fire
and explosion communities have been the ones produced by
T/SWGFEX (http://ncfs.ucf.edu/twgfex/symposium.html). Even those
have not appealed to all due to venue, format, and the availability of
speakers.

c. Continuing Education

1) There are a variety of commercially available training programs

available in a wide variety of topics.

2) Some organizations provide free training classes via the Internet.

a) For fire investigators and bomb technicians most of these no-cost

on-line seminars are quite good and fulfill many of their needs.

b) For laboratory analysts, very few no-cost symposia are completely

relevant to their positions in the forensic laboratory and most are
limited to specific instrumental techniques.

30
Mid-Atlantic Association of Forensic Scientists (http://www.maafs.org), Midwestern
Association of Forensic Scientists (http://www.mafs.net), Northwest Association of
Forensic Scientists (http://www.nwafs.org), Southern Association for Forensic Scientists
(http://www.southernforensic.org), and the Southwestern Association of Forensic
Scientists (http://www.swafs.us). See the AAFS Website (http://www.aafs.org) for
contract information for other national/regional forensic science-related organizations as
well as dates/times for upcoming national/region meetings.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 34

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

3) Many commercial training programs on DVD, tape, or CD cover

subjects so broadly that they only have limited applicability to the
needs of the fire and explosion community.

d. Interactive training

1) An essential component to insert into as many of the selected

opportunities as possible is to encourage the interaction between
analysts and investigators.

2) The more that one can understand about the capabilities and
limitations of the other, the better they can interact with each other.

3) Interactive experiments and short cross-training experiences in the

basic aspects of each others work are desired.

4) Accessibility to each other in a broad network across state, local, and

federal lines is desired and has the potential to improve the quality of
investigations and analyses by simply reducing any perceived or real
isolation (by relatively small and remote units).

2. Suggested Solutions

a. Formal Education

1) Contact those schools known for providing quality on-line and non-
conventional degree programs to determine if any have a residency
requirement (on campus for a set period or number of hours). Ensure
that their programs can be completed either entirely on-line or wholly
on weekends and evenings. List these programs and contacts and
make them the priority programs for the following scholarships.

2) Establish and fund a scholarship program where ten (10) investigators

per year are selected for enrollment into a Bachelor or Masters
Degree program in Law Enforcement, Criminal Justice, Fire Science,
Forensic Science, or a related and germane field. Fund only the tuition
costs for a maximum of four years and the minimum number of credit
hours required to obtain the degree. All other costs are to be borne by
the individual selected.

3) Establish and fund a scholarship program where ten (10) analysts per
year are selected for enrollment into a Graduate Certificates and

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 35

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Degree program in Chemistry, Fire Science, Forensic Science, or a

related and germane field. Fund only the tuition costs for a maximum
of three years and the minimum number of credit hours required to
obtain a Masters or Doctoral degree. All other costs are to be borne
by the individual selected.

4) Require that any persons selected for this program reimburse the
funding agency for any costs incurred should the individual opt to
discontinue the program prior to completion.

5) Require that any person selected for this program remain employed by
the same agency through the completion of the program and two years
thereafter.

b. Symposia and Seminars

1) Secure solicitations for the registration, travel, and lodging costs for a
maximum of ten (10) individuals per year to attend a fire, bombing,
analytical, forensic seminar, or symposium where they have been
accepted to provide a workshop, paper, or presentation.

2) Promote attendance of the T/SWGFEX symposia by subsidizing the

costs for meeting space/venue; speaker honoraria; travel/lodging costs
for speakers, hosts, staff, and organizers.

a) Require that the T/SWGFEX symposium seek an equivalent

balance between speakers and presentations germane to
investigations and analysis as well as fire and explosions.

b) Set aside a portion of the symposium where individuals from

either the analytical or the investigative communities may present
papers regarding original research or unusual cases.

c. Continuing Education

1) Include some of the topics identified in the survey as targeted

presentations or workshops to be included in the T/SWGFEX
symposium.

2) Create instructional presentations specific to the needs of the fire and

explosion communities for no-cost distribution on DVD or download via
the Internet.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 36

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

d. Interactive Training

1) Develop solicitations that include the resources to coordinate

experimental fires and explosions conducted around the nation so that
more than just local or limited agency personnel can participate. This
is necessary as it is becoming more difficult to meet all the regulatory
and statutory requirements for conducting these live experiments. A
special effort to determine the capabilities of the BATFE Fire Training
Center should be made.

2) Create a protocol for contacting an organizing agency to determine if

they would like assistance in the set-up and data gathering and if they
will allow observers to attend.

3) Determine a level of assistance that may be made available to the

organizing agency: data gathering, recording, consumables, and
personnel.

4) Use available resources to identify laboratories willing to host guests to

shadow the fire debris or explosives analytical process for a maximum
of three days.

3. Implementation Strategies

a. Formal Education

1) Utilize T/SWGFEX to research and create lists and links to the schools
that meet the above criteria and post such lists and links on the
T/SWGFEX Website.

2) Utilize T/SWGFEX to research and create scholarship application

forms that will assess the applicants experience, work history, existing
education, potential to complete a formal program, financial need, and
geographic distribution.

3) Utilize T/SWGFEX to review completed applications and provide a

listing of top candidates to NIJ for final selection.

4) Utilize T/SWGFEX to create the attendant promissory forms and to

monitor the progress of selected candidates.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 37

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

b. Symposia and Seminars

1) Utilize T/SWGFEX to research and create symposia and seminar

scholarship application forms that will ask which seminar or
symposium the applicant wishes to attend. The application form would
additionally assess the applicants experience, work history, existing
education, training need, and geographic location.

2) Utilize T/SWGFEX to review completed applications and provide a

listing of top candidates to NIJ for final selection.

3) Utilize T/SWGFEX to create the attendant promissory forms and to

monitor the progress of selected candidates.

4) Utilize T/SWGFEX to review completed applications and provide a

listing of top candidates to NIJ for final selection.

5) Utilize solicitations to distribute funds to pay the selected attendees

travel and registration in advance and to reimburse the attendee for
hotel and meals after completion of the seminar or symposium.

6) Support financially efforts to continue to sponsor T/SWGFEXs

Symposium.

7) Determine if a change of venue would increase attendance and, if

changed, the increased costs of logistics for managing it remote from
Orlando, Florida.

8) Topics suggested in the survey, which would be directly applicable to

the T/SWGFEX.

9) Speakers should be targeted and solicited who are involved in the

development of new technology and instrumentation in the analysis of
fire and explosives.

10) Presentations on TATP and other peroxide based and homemade

explosives, including manufacture, handling, use, mis-use, and
analytical procedures.

11) Scene investigation workshops for both fire and explosives that will
promote interaction and idea sharing between investigators and
analysts.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 38

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

12) Develop a session for investigators in explaining the various ASTM

classes of ignitable liquids, examples, and why they are used.

13) A session of the use of polarized light microscopy (with an

accompanying DVD) and its use in explosives analysis.

c. Continuing Education (CE) This will require considerable financial

support by NIJ in the development of recorded short courses that can be
made available by either DVD or on-line.

1) Utilize T/SWGFEX to research and create recorded sessions on the

following topics. The initial presentation could be made on-site at
NCFS, in a laboratory, at an experimental scene, or an explosives
range. This footage would be incorporated into the DVD and online
products and may require a legal disclaimer that all methods,
parameters, and possibilities may not have been included:

a) Polarized Light Microscopy Of Explosives.

b) Following Fire Debris Evidence Through The Laboratory:

Extraction, Analysis, And Interpretation For The Investigator.

c) Following Explosives Evidence Through The Laboratory:

Extraction, Analysis, And Interpretation For The Investigator.

d) Understanding ASTM Ignitable Liquid Classifications And Why

They Are Used.

e) Organic Chemistry of Fire Debris Analysis: Molecular

Composition of Ignitable Liquids and Materials at a Scene;
Combustion Reactions and Products; Analytical Procedures for
Organic Species.

f) Gas Chromatography/Mass Spectroscopy of Ignitable Liquids and

Pyrolysis Products.

g) The Making Of Ignitable Liquids: From Crude Oil Through The

Refinery To Commercial Product.

h) Fundamental Fire Scene Investigation According To The NIJ

Research Report Fire And Arson Scene Evidence: A Guide For
Public Safety Personnel (June 2000).

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 39

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

i) Fundamental Post-Blast Scene Investigation According To The

NIJ Research Report A Guide For Explosion And Bombing
Scene Investigation (June 2000).

j) Advanced Fire Scene Investigation.

k) Advanced Post-Blast Scene Investigation.

l) Fire Dynamics.

m) How To Be An Effective Expert Witness (One Each For Fire

Investigations, Post-Blast Investigations, Fire Debris Analysts,
And Explosives Analysts).

n) The Instruments And Methods For Analyzing Explosives.

o) The Collection And Preservation Of Evidence (One Each For Fire

Scenes And Post-Blast Scenes).

p) Investigating Potential Electrical Fires.

q) The Training, Use, And Value Of Canines In The Fire (Or

Explosion) Scene.

r) Using A Disruption Scenario To Create The Post-Blast Scene:

Considerations Of Positioning, Comparison Sampling, And
Evidence Collection.

s) The When, Where, And How To Of Render Safe.

t) Interpretation Of Fire Debris Analysis Data.

u) Extraction And Sample Preparation Methods In Explosives

Analysis.

v) Report Writing For Accuracy And Validity: Scientific And Legal.

w) How Explosives And Pyrotechnics Are Manufactured.

x) IEDs And Homemade Explosives Recognition And

Construction.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 40

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

d. Interactive Training

1) Use T/SWGFEX to identify ongoing opportunities where experimental

fires and explosions are being conducted around the nation. Special
effort to coordinate with the BATFE Fire Training Center should be
made a priority.

2) Contact the organizing agency to determine if they would like

assistance in the set-up and data gathering and if they will allow
observers to attend. Assist the organizing agency with the cost of
consumable supplies.

3) Maintain a cache of measuring devices and sensors relevant to

collecting data on temperature, wind direction, humidity, pressure
wave, available oxygen, and heat flux at specified locations. Augment
this cache with miniature cameras that can be placed into the
experimental environment to collect images during the experimental
event.

4) In addition to the cache, T/SWGFEX members must be trained in data

recording and camera set-up and so that they can operate the cache of
equipment at any experimental scene.

5) Provide funds for travel, lodging, and meals for up to fifteen (15)
investigators and analysts to attend these events.

6) Use T/SWGFEX to identify laboratories willing to host guests to

shadow the fire debris or explosives analytical process for a maximum
of three days.

7) Provide funds for travel, lodging, and meals for up to fifteen (15)
investigators or analysts.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 41

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

B. Fire Dynamics

1. Needs and Problems Identified

a. Much has been done to develop our understanding of the dynamics of a

fire scene. A training program has been developed by NCFS and the
United States Fire Academy (USFA) offers a two-week class on the
subject.

b. While there is some information, research, and references on the

dynamics of an explosion or the logistics of a post-blast scene, there is
currently no comprehensive program describing the dynamics of an
explosion scene.

2. Suggested Solutions

a. Utilize T/SWGFEX to develop a program of training in the dynamics of the

explosion scene.

b. Conduct additional research necessary as to fill any gaps in knowledge.

3. Implementation Strategy

a. Issue NIJ grant solicitations for fundamental research as it can be applied

to the dynamics and physics of explosions.

b. Utilize T/SWGFEX to provide a pool of subject matter experts to review

the solicitations and grant application proposals from which they would
provide recommendations to NIJ for final consideration.

c. Utilize T/SWGFEX to write and incorporate existing data and information

with developed research into a comprehensive program guide on
explosion dynamics.

d. Once created, ensure that the program is delivered to the relevant

community through publication of the research and presentation of the
program.

e. Provide a link to the portions of the program, which can be made publicly
available on T/SWGFEX Website.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 42

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

IV. Expand Access to Existing Information on Instrumentation and Equipment

Survey Questions 12 and 31.

1. Needs and Problems Identified

a. Forensic laboratories have limited budgets for purchasing instrumentation.

b. There are multiple vendors for each instrument.

c. Each laboratory will have certain specifications for the instrument that are of a
higher priority to them than may be held by another laboratory.

d. The task of contacting each manufacturer, reading and sorting the multiple
specifications, and comparing the germane specifications to aid in selection of
the instrument for purchase is formidable and daunting.

2. Suggested Solution

a. Gather information on instruments, their specifications, literature, and contact

information and place it in a single location where it can be accessed by any
laboratory.

b. Set up the information on technical specifications in a format that will allow

comparison of specifications between instruments.

c. Be certain to design the listing so that the information is taken directly from
manufacturers information and that the listing is entirely objective.

d. Encourage the inclusion of manufacturers in designing the database or

spreadsheet and the technical specifications it should contain.

3. Implementation Strategy

a. Survey forensic laboratories on the types and manufacturers of instruments

they currently use and would like to obtain.

b. Contact each manufacturer for brochures and technical specifications for their
instruments.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 43

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

c. Have T/SWGFEX (and other relevant experts) review the literature to

determine those technical specifications identified as being critical for
comparing one instrument with another.

d. Have T/SWGFEX create a database or spreadsheet, listing each instrument

by type and the specifications of each so that side-by-side comparisons can
be made.

e. Post this spreadsheet on the T/SWGFEX Website for public access to the
comparison information.

f. List on a single site, within the T/SWGFEX Website, the web links, addresses,
and telephone numbers for instrument manufacturers and their
representatives.

g. In a separate T/SWGFEX database or spreadsheet, list observations,

cautions, and operational suggestions by instrument manufacturer, instrument
type, and application.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 44

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

V. Promote Consistency in Terminology, Methods, and Techniques

Survey Questions 12, 15, 24, 25, 31, 78, 79, 80, 81, 82, and 83.

A. Glossaries for Fire and Explosions

1. Needs and Problems Identified

a. A glossary to promote consistency of terms relevant to fire and explosion

investigation and forensic analysis was identified as being desirable.

2. Suggested Solutions

a. Utilize the existing glossaries created by T/SWGFEX and posted on their

Website.

3. Implementation Strategies

a. Create a clearly identifiable folder on the T/SWGFEX Website containing a

professional version of these Guides. Have a link to this site from the NIJ
and NCFS Websites.

b. Send copies of the glossaries to members of the T/SWGFEX list serve

with the web link as well.

c. Send electronic copies of the glossaries and the web link to it to other
organizations who serve fire and explosion investigation and analysis
communities under the imprimatur of NIJ.

d. Print copies of the glossaries under the imprimatur of NIJ for

dissemination at professional meetings to investigators and forensic
scientists.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 45

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

B. Laboratory Submission Guidelines

1. Needs and Problems Identified

a. Professionals in the fire and explosion scene investigation and laboratory

analyses communities want access to evidence submission guidelines
used by other agencies.

2. Suggested Solutions

a. Contact members of T/SWGFEX who represent laboratories across the

United States, Canada, and Australia for electronic versions of their
submission guidelines in PDF format. For those with only hard copies,
send them to NCFS to be scanned into digital format.

3. Implementation Strategies

a. Create a folder of evidence submission Guides and Criteria under the

T/SWGFEX Website (with links to it in the NIJ and NCFS Websites) where
the electronic versions are posted by
country>state/province>county/municipality.

b. Have a separate area where private organization criteria can be posted so

long as advertisement has been redacted.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 46

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

C. Resources and Best Practices in Analysis and Investigations

1. Needs and Problems Identified

a. Analytical techniques for fire and explosives analyses are available from a
variety of resources. For fire debris analysis, the American Society for
Testing and Materials (ASTM, http://www.astm.org) has created
authoritative resources for both the extraction of ignitable liquids from
debris and the identification of those same ignitable liquids by gas
chromatography (with either a mass spectral or flame ionization detector).
These standards have recently been made available by the National
Institute of Justice to all public forensic laboratories.

b. For explosives analysis, the same authoritative references do not exist.

Several agencies have protocols, methods, and techniques they are
willing to share. T/SWGFEX has posted some guides and references on
explosives and others are currently in development. The techniques to be
used depend greatly on the instrumentation and resources available within
each laboratory. Some laboratories may only have access to wet
chemical or polarized light microscopy techniques.

c. The respondents to the survey have identified a need for access to more
reference materials, protocols, guides, and macro programs. They desire
these to be easily accessible within a single source. They desire similar
information for both fire debris and explosives analysis. Survey
respondents desire a single source to list the various combinations of
instrumental protocols (e.g., columns, flow rates, ion trap temperatures,
temperature programs, etc.) for both fire debris and explosives analysis.
Essentially they want a listing and links to the best methods and
techniques. At the same time, they would also like a listing of the
techniques and methods, which have documented deficiencies. If
possible, the limits of detection, which have been scientifically validated,
should be included for the various techniques. Lastly, the guides should
be written to address the fact that all laboratories are not similarly
equipped and that some laboratories will only have access to basic
equipment and resources.

2. Suggested Solutions

a. Use a single Website to create a reference folder with links to commercial

sources of guides and standards such as ASTM and NFPA as well as the
free guides and standards posted by T/SWGFEX.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 47

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

b. Poll the membership of T/SWGFEX as well as experts outside the group

for the instrumental techniques, protocols, references, instrumental
parameters, and guidance they would recommend as well as any cautions
they may offer.

c. Review and update existing bibliographies posted on the T/SWGFEX

Website in both fire debris and explosives analysis. Add to each
reference a list of keywords pertinent to the article.

d. Have the T/SWGFEX organization complete the Fire Debris Report

Writing Guide and Post-Blast Materials Identification Protocol.

e. Have the T/SWGFEX organization create new guides:

1) Standardizing the process of burning comparison and control samples

to produce pyrolysis products

2) Defining the minimum requirements and describing the techniques for

polarized light microscopy of explosives

3) Describing the techniques of wet chemistry and thin layer

chromatography in explosives analysis

3. Implementation Strategies

a. Utilize existing and select sub-committee(s) of T/SWGFEX to review the

suggestions by its membership and from other experts to create a best
practices guide for both fire and explosives analyses (taking care not to
infringe on the copyright of any other organization). Rely heavily on the
T/SWGFEX resources, which are already publicly posted and encourage
the completion of those in development.

b. Post this guide along with links to ASTM, NFPA, and others on the
T/SWGFEX, NIJ, and NCFS Websites.

c. Print copies of this guide for dissemination at professional meetings

attended by both fire debris and explosives analysts.

d. Utilize a separate sub-committee of T/SWGFEX to review and research

the bibliographies and update them with newer references. The group will
also data mine the keywords from each reference.

e. Post the revised bibliographies in web instrument where the references

can be searched by author, title, or keyword.

f. Post links to resources where these reference items may be obtained.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 48

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

D. Canine Use in Post-blast Environments

1. Needs and Problems Identified

a. Canines have been trained to expose the presence of explosives hidden

in baggage and packages and to indicate if individuals have explosives
residues on their clothing or bodies.

b. Most canines trained in explosive detection are trained to alert to intact

non-reacted explosives.

c. Canines, which have been trained to alert to certain ignitable liquid

residues, have proven themselves as invaluable tools for determining the
areas within a scene, which have the highest probabilities for containing
ignitable liquids.

d. Post-blast scenes are not the same as fire scenes in many aspects. One
primary aspect, which affects a similar use of canines, is that in fire
scenes the ignitable liquids used as accelerants are primarily stationary,
remaining in the areas where first deposited. In a post-blast environment,
the explosive and its residues may be forcefully dispersed over a large
area.

e. Each post-blast investigation is unique. The same sets of circumstances

and investigative parameters do not occur in each situation.

f. The increased and improved use of canines to aid in determining the best
sampling areas in post-blast scene is desired.

2. Suggested Solutions

a. Development and standardization of protocols for the post-blast usage of

canines.

b. Post the developed protocols in a secure environment.

c. Existing and new research into the optimum sampling areas of post-blast
sites is needed. Incorporate this research into the training of canines and
their handlers.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 49

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

d. Set up and execute field experiments to gather data which can be applied
to the training of these canines.

3. Implementation Strategies

a. Convene a gathering of experts in the handling of canines, explosives

canines, analytical chemists, bomb technicians, and bombing scene
investigators.

b. Charge the group with gathering and collating all existing protocols on the
use of canines in post-blast scenes.

c. Charge the group with developing additional protocols, training guides,

and field exercises to promote the improved proficiency of post-blast
canines.

d. Support the group by incorporating them into T/SWGFEX so that the

benefits of access to related experts is expedited, development of required
materials is on-going, and training via the T/SWGFEX annual symposium
can continue.

e. Have NIJ, or one of its partners, act to create and track canine
proficiencies as a national and central clearinghouse. This will improve
documentation and records for canine results.

f. This strategy for NIJ to track canine proficiencies as a national and central
clearinghouse should additionally be expanded to fire debris canines.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 50

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Appendix A.1 Participants, State, and Local

National Needs Assessment Planning Panel

James Crippin

Western Forensic Law Enforcement Training Center (Pueblo,

Colorado)

Dennis Hilliard

Rhode Island State Crime Laboratory (Kingston, Rhode Island)

J. Ron McCardle, Major

Florida Division of State Fire Marshal (Tallahassee, Florida)

P. Mark L. Sandercock, PhD.

Royal Canadian Mounted Police (Edmonton, Alberta, Canada)

Sharee Booke Wells

Alabama Department of Forensic Sciences (Birmingham, Alabama)

Lisa Windsor

Tucson Police Department Crime Laboratory (Tucson, Arizona)

Carl Chasteen (Project Manager and Principal Author)

Florida Division of State Fire Marshal (Havana, Florida)

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 51

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Appendix A.2 Participants, State, and Local (continued)

National Needs Assessment Sub-Committee Members

Judy Hoffman

Montana Forensic Science Division (Missoula, Montana)

Kim Freeland

Rhode Island State Crime Laboratory (Kingston, Rhode Island)

Mary Williams

The National Center of Forensic Science (Orlando, Florida)

Jimmie Oxley

University of Rhode Island (Kingston, Rhode Island)

Wendy Norman

Royal Canadian Mounted Police (Ottawa, Ontario)

Graham Rankin

Marshall University (Huntington, West Virginia)

Mike Sigman

The University of Central Florida (Orlando, Florida)

Joe Powell

South Carolina Law Enforcement Division (Columbia, South Carolina)

Jim Vose

Vermont Department of Public Safety (Waterbury, Vermont)

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 52

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Vince Desiderio

New Jersey State Police Office of Forensic Sciences (Hamilton, New

Jersey)

Kristen McDonald

New York City Police Crime Laboratory (New York, New York)

Jerry Rudden

Tennessee State Fire Marshal (Nashville, Tennessee)

Frank Doyle

Federal Bureau of Investigation (Retired) (San Ramon, California)

Dennis Chapman

Iowa State Police Crime Laboratory (Ankenny, Iowa)

Jess Dunn

Iowa State Police Crime Laboratory (Ankenny, Iowa)

Doug Williams

United States Fire Administration (Emmitsburg, Maryland)

Jeffery Jagamin

Washington State Patrol Crime Laboratory (Tacoma, Washington)

Tammy White

Florida State Fire Marshal (Fort Myers, Florida)

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 53

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Appendix A.3 Participants, State, and Local (continued)

The T/SWGFEX Executive Committee

James Crippin, Chair

Western Forensic Law Enforcement Training Center (Pueblo,

Colorado)

Clyde Liddick, Vice Chair

Pennsylvania State Police (Harrisburg, Pennsylvania)

Dennis Chapman, Executive Board

Iowa State Police Crime Laboratory (Ankenny, Iowa)

Dennis Hilliard, Executive Board

Rhode Island State Crime Laboratory (Kingston, Rhode Island)

Doug Williams, Executive Board

United States Fire Administration (Emmitsburg, Maryland)

Sherrie Thomas, Executive Board

Bureau of Alcohol, Tobacco, Firearms, and Explosives (Atlanta,

Georgia)

Ingrid Dearmore, Executive Board

Washington State Patrol Crime Laboratory (Marysville, Washington)

Tracey Thompson, Assistant Director

Western Forensic Law Enforcement Training Center (Pueblo,

Colorado)

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 54

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Appendix A.4 Participants, State, and Local (continued)

The National Center of Forensic Science (NCFS)31, Orlando, Florida

Carrie Whitcomb, Director

Stephen Allen, Technical Manager

Thomas Minnich, Technical Manager

John Bardakjy, Coordinator, Research Programs/Services

Christopher Parker, Computer Systems Analyst

David Galat, Survey Technical Assistant

31
NCFS is a National Institute of Justice (NIJ) program hosted by the University of
Central Florida (UCF) in Orlando, Florida.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 55

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Appendix B. Synopsis of Survey Results

Discussion of Survey Results

This Appendix will provide a synopsis of the results of the survey. Questions 1 through
15 are the demographic, general, and professional development sections. This will
allow the reader to understand more about the identity and qualifications of the
respondents to the survey. As you will see, the respondents were from a broad
spectrum of both public and private agencies. The remaining questions of the survey
instrument (Questions 16 through 100) contain the full results of the survey. The
reader is encouraged to cross-reference both the synopses provided and the full survey
with the various recommendations made by the Needs Assessment Committee.

Four-hundred and seven (407) responses to the survey were received. Public sector
agencies provided 307 respondents (75.43%) and private organizations provided 93
respondents (22.85%). Seven (7) respondents (1.72%) did not indicate if their agency
was public or private. A breakdown of all public agency respondents indicates that city
employees were the largest group with 170 respondents (41.77%). The remaining
public respondents are: county employees 70 (17.12%); state employees 52
(12.78%); and federal employees 15 (3.69%).

An examination of the respondents by discipline found that most individuals work in

multiple disciplines. For example, a person may perform fire debris analysis for 50% of
their time, explosives analysis for 10%, supervise others 20%, and teach for 20%.
Thus, this individual would have entered responses into those questions germane to
four of the six disciplines. Other examples of an individual responding to multiple
disciplines are possible. This is the reason respondent totals were different from the
407 respondents.

In order to gain a better understanding of each discipline, it was more useful to extract
the raw input data and use SPSS software to examine cross-relationships. With this
approach the 0 10% grouping for each discipline must be excluded since there is no
method to ascertain if the respondent was referring to 0%, 10%, or any percentage in
between. For this section of the report, it will be consistently assumed that most
respondents would divide their activities into approximate 10% blocks and would mark
10% or higher when identifying their activities.

One hundred twelve (112) respondents indicated they performed fire debris analysis for
more than 10% of their work time. Of these, 59.82% (67) performed fire debris analysis
from 10 to 40% of their time. Only 16.97% (19) worked as fire debris analysts from 40
to 70% of the time. Surprisingly, 23.21% (26) indicated they were engaged in fire debris
analysis from 70 to 100% of their time. This is seen in Table 1. In Table 2, another
way to examine the 112 fire debris analysis respondents shows that 24.11% (27) work
in private organizations and 75.89% (85) work in public agencies. The public agency
grouping can be sub-divided into city 30.36% (34), county 16.96% (19), state 24.11%
(27), or federal 3.57% (4) as is seen in Table 3.

Making the same breakouts as above, but placing the data in tabular form:

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 56

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

10 to 40% of time 40 to 70% of time 70 to 100% of time

Discipline Total
Percent Number Percent Number Percent Number
Fire Debris Analysis 112 59.82 67 16.97 19 23.21 26
Explosives Analysis 68 91.18 62 5.98 4 2.94 2
Fire Scene Investigation 292 38.36 112 16.44 48 45.21 132
Bomb Scene Investigation 144 91.67 132 3.47 5 4.86 7
Supervisory 128 56.25 72 11.72 15 32.03 41

Training or Teaching 149 83.89 125 12.08 18 4.03 6

Table 1: Percent Of Time A Discipline Is Performed By A Respondent

Private Public
Discipline Total
Number Percent Number Percent

Fire Debris Analysis 112 27 24.11 85 75.89

Explosives Analysis 68 15 22.06 53 77.94

Fire Scene Investigation 292 80 27.38 212 72.06

Bomb Scene Investigation 144 36 25 108 75

Supervisory 128 26 20.31 128 79.69

Training/Teaching 149 40 26.85 109 73.15

Table 2: Comparison Of The Number And Percent Of Private Vs. Public Respondents By Discipline

Discipline by Public City County State Federal

Total
Sector Agencies No. Per. No. Per. No. Per. No. Per.

Fire Debris Analysis 85 34 30.36 19 16.96 27 24.11 4 3.57

Explosives Analysis 53 25 36.76 12 17.65 11 16.18 5 7.35

Fire Scene Investigation 212 141 48.29 43 14.73 19 6.51 9 3.08

Bomb Scene Investigation 108 54 37.5 32 22.22 16 11.11 6 4.17

Supervisory 128 47 36.72 29 22.66 20 15.63 6 4.69
Training/Teaching 109 53 35.57 27 18.12 23 15.44 6 4.03

Table 3: Number and Percent of Respondents Working in Public Sector Agencies by Discipline

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 57

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Question 3 of the survey, List the number of employees (including you) in your
laboratory or unit involved in fire debris or explosives analysis, scene investigation,
and/or reporting for each of the following categories, sought to determine the average
number of individuals in the various responding agencies. The degree of variation
between responding agencies is reflected in the standard deviation noted in Table 4.

Average per
Position Standard Deviation
Respondent
Analyst/Scientist 2.00 3.81
Lab Supervisor/Manager 0.80 2.30
Scene Investigator/EOD 6.62 15.04
Scene/EOD Supervisor 2.28 5.27

Table 4: Average Number of Personnel per Agency By Job Type

For Question 4, the respondents were requested to indicate the number of employees
having specific years of experience from 0 to more than 30. The posting of this survey
item failed to include a choice for 15 to 20 years. Even with this anomaly however,
charting the responses received shows that the respondents organizations have
individuals with a broad level of experience (See Figure 1). The bell shape of the curve
(minus the data for 15 to 20 years) would indicate that 10 to 15 years of experience is
typical. A potentially disturbing phenomenon is the rise in the number of respondents
who indicate they have a significant number of employees with more than 30 years
experience. This could potentially indicate a significant loss of experience as these
individuals retire and should increase the emphasis on training and continuing
education of those who remain.

Average Number of Employees by

Years of Experience
Number of Employees

10
in Respondent's
Organization

8
Mean # of
6 Employees
4 Standard
Deviation
2
0
2
5
10 0
15 5
20 0
25 5
0
0
1
-1
-2
-2
-3
0-
2-

>3
5-

Years of Experience

Figure 1: Graph of the Average Number of Employees Per Agency By Years of Experience

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 58

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Question 5 sought to determine the level of education of employees within the

respondents organizations. The responses would seem to indicate that most
respondents organizations are populated primarily with high school graduates and very
few with Bachelors and advanced degrees. Because this data set did not separate
those with a primary duty in investigations from those with a primary duty in forensic
analysis, it is likely skewed. Forensic Laboratories typically require a minimum of a
Bachelors degree in a natural science in order to be employed while it is common for
investigative agencies to have a high school diploma as the minimum requirement.
Regardless of this, however, it should be noted that the numbers having Masters and
Doctoral degrees drop significantly. This may be an indication of the need for more
formal educational opportunities for both investigators and analysts.

The responses to Question 6, Indicate the number of times you testified in court in
2006 are not surprising. Those who testified only one (1) to five (5) times comprise
80% (256 of the 320 responding to the question). Those indicating six (6) to ten (10)
times comprise 10.9% (35 of 320) and those indicating eleven (11) to fifteen (15)
comprised 4.1% (15). Thus 95% of the 320 respondents to this question testify fewer
than fifteen (15) times in 2006. Compared to other forensic disciplines this is very few.
The reasons are anecdotal yet will be reflected in other answers found in this survey. In
many areas of the nation, prosecution for fire and or bombings are rare. The main
reason is that these cases are largely composed of circumstantial evidence. Even the
forensic evidence rarely points to a perpetrator and typically only proves that a crime
was committed. Thus, prosecutors identify the amount of work to be done on these
cases to be inordinate with their chances for conviction and are thus willing to plea the
case before it goes to court or are unwilling to prosecute. The discussion among the
planning panel members and T/SWGFEX indicates that in jurisdictions having a
dedicated prosecutor, who has received active training from both investigators and
forensic laboratory personnel, the rate of cases proceeding to prosecution and eventual
conviction is higher.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 59

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

As we move into Part B of the survey, we sought to determine information regarding the
professional development of the respondents. Question 7, Which, if any, of the
following professional development activities will your laboratory or agency pay (in part
or in full) for employees to attend (check all that apply), received responses from 390
individuals. The most encouraging response was that only 6.2% (24) respondents
indicated that their employer would not pay for any courses, seminars, conferences, or
symposia. If a conference, seminar, or symposium were held in the same state or
province as the respondent, 86.9% (339) indicated their agency would be willing to
assume at least a portion of the costs. Another 80% (312) respondents indicated
support from their agency to attend local, state, or regional professional association
meetings. The remaining six choices are broken down as:

Seminars of courses held off site 70% (273)

Conference, seminar, or symposium were held outside the same state or

province 62.6% (244)

Seminar or course held on site 60% (234)

Classes held at a local university 52.1% (203)

On-line classes from an accredited university 42.1% (164)

Conference, seminar, or symposium were held outside of home country 12.3%

(48)

Question 8 attempted to determine the level of funding typically provided by an

organization for an employee. 375 of the respondents provided an estimate to this
question. A level from $501 to $2000 was indicated by 41.6% of the respondents. The
level from $2001 to $5000 per employee was indicated by 24.2%. At the opposite
extremes were those agencies that provided either no funding, 8.8% of respondents, or
over $5000, 8.3% of respondents. Considering the cost of travel, hotels, and
registration fees, the funding levels indicated would tend to limit the training and
educational opportunities for the vast majority of respondents. Question 9, in
anticipation of this result, asked respondents the likelihood of the individuals ability to
assume the costs of their own training. If an individual were asked to pay for 100% of
the costs, 65.4% of respondents said that it would be unlikely to never. At 75% of cost,
the number indicating unlikely to never dropped to 61.3%. For 50% of the cost for
training, the number of respondents dropped further to 40.8%. In fact at 50% of the
costs, the shift indicated that the majority of respondents, 59.2%, would assume part of
the training costs. If they were asked to pay for 25% of the training costs, the number
indicating a positive response raises to 80.2%. Obviously the percentage of
respondents who indicated their level of participation in training as extremely likely to
absolutely if they were not asked to pay for any training costs rose to 85.4%.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 60

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Primary Secondary Tertiary

Continuing Education Course
Rank Rank Rank
EOD Range Time (Training with EOD personnel) 7 4 1
Fire Scene Evidence Collection, Preservation, and
7 4 5
Packaging
Explosives Scene Collection, Preservation, and
7 4 NA
Packaging
Fire Dynamics (including Chemistry and Physics) 7 4 5
Petroleum Refining Processes 1 4 3
Ignitable Liquid Classification System 4 7 NA
Electrical circuitry and fire 7 4 5
Testifying as an Expert Witness 7 5 4
Explosives Manufacturing Processes 7 4 5
IED recognition and construction 7 4 5
Computer Fire Modeling 7 4 5
Gas Chromatography 4 1 2
Mass Spectral Interpretation 1 4 3
Raman Spectroscopy for Explosives 1 4 NA
X-Ray Analysis Techniques (Diffraction, Fluorescence,
7 1 4
Energy Dispersive)
Ion Chromatography 1 3 4
Capillary Electrophoresis 1 3 4
Fourier Transform Infrared Spectroscopy 1 4 3
Advanced Organic Chemistry for Fire Debris Analysis 1 4 7
Advanced Topics in the Chemistry of Organic
1 4 7
Explosives
Advanced Topics in the Chemistry of Inorganic
1 4 7
Explosives
Forensic Fire Scene Examination 7 5 NA
Forensic Explosive Scene Examination 7 5 4
Communication and Cooperation between Investigators
7 4 5
and Analysts in Fires
Communication and Cooperation between Investigators
7 NA NA
and Analysts in Explosions

Table 5: Ranking of Continuing Education Courses

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 61

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Question 10 is logically in the Professional Development section and the information it

provides is of particular use to the sub-committees charged with investigation of the
training needs. An issue, raised when the task group met to discuss survey results, is
that the responses of the forensic analysts are not separate from those of the
respondents with investigations as their primary focus. Because more investigators
responded, these measures are skewed. In order to attempt to glean the best
information, the probability density plot of the responses for each continuing education
topic must be carefully examined. If we ascribe the major peak in each as being
weighted primarily by the investigators, then any secondary (and in some instances a
tertiary) peak would be indicative of the rankings by the analytical community. The
complete question for #10 is, Rate how interested you would be in taking each of the
following types of continuing education courses (1-7 where 1 = Never, 4 = Likely, and 7
= Absolutely). Creation of a tabular display of the responses where the probability is
measured at more than 0.15 is seen in Table 5.

Those with the primary ranking at 7 with secondary and tertiary rankings of 4 or lower
are courses which would be most desired by investigators (marked in tan). Those with
a primary ranking of seven with secondary and tertiary rankings above 4 would appeal
to both investigators and analysts (marked in pale blue). Those with a primary ranking
of 1, but with a secondary and tertiary ranking of 4 or higher would appeal most to
analysts (marked in light turquoise). The key anomalies to this ranking begin with the
last listing, Communication and Cooperation between Investigators and Analysts in
Explosions. It appears to be ranked as a 7 by all respondents and thus would appeal
to everyone. Next the Ignitable Liquid Classification System with a primary ranking of
4 but a secondary of 7 with no tertiary ranking would also tend to be a course which
would have strong attendance by both investigators and analysts.

Training and continuing education continued under Question 11 when the respondents
were asked to identify training/classes that you feel would be helpful to you in order to
do your job better. A review of the inputs, excluding several that were redundant to
courses already listed, and condensing similar items provided the following list of
additional topics of interest:

Vehicle, Heavy Equipment, And Recreational Vehicle Fires

Death Scenes And Investigations
Quality Assurance In The Laboratory Reducing Interferences And Eliminating
Contamination
Digital Photography And Image Management
Appliance Fire Investigations: Electrical And Gas
Watercraft And Underwater Investigations
Data/Document Management And Writing Reports
Complex Scene Management
Effect Of Fire Suppression And Overhaul On Fire Scene Evidence
Interview And Interrogation Techniques Including Kinesics

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 62

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Hazardous Materials Recognition And Sampling

Latent Prints In Fires And Bombings
Live Experimental Fires And Explosions: Investigation And Evidence Collection
Laser Documentation And Computer Aided Design For Crime Scene
Documentation
Wildland Fire Investigations
Objectivity And Avoiding Bias: Using The Scientific Method
Forensic Accounting And Financial Analysis In Fires With Fraud Implications
Case Law Studies And Review Pertaining To Fire And Bombings
Safety At Fire And Bombing Scenes Awareness Of Acute And Chronic
Dangers
Reading And Comprehending The Technical Report
Military Ordnance Recognition
Spontaneous Combustion Fire Investigation
Surveillance
Chemical Incendiaries And Hypergolic Mixtures
Serial Arson Investigations Recognition And Techniques
Legal Liability And Spoliation In The Fire Scene

Resource Mean
Ranking
Comprehensive Listing Of People Working In The Field (Private And Government) 5.20
Create A Secure Internet Link For E-Mail And Information Exchange Between
Professionals
5.70
Establishment Of A Collection Of Sample Laboratory Reports 4.95
Creation Of A Glossary Of Analytical, Explosives, And Fire Debris-Related
Technology
5.42
Creation Of Information Templates For Evidence Submission 5.08
Establishment Of A Collection Of Methods And Protocols For Analytical Techniques 5.28
Establishment Of Databases Of Reference Materials For Analytical Techniques 5.27
Creation Of A National Database For Tracking Bombing Matters 5.16
Creation Of A National Database For Tracking Arson Matters 5.73
Establishment Of A National Resource Database (For Lab Equipment, Expertise,
Etc.)
4.99
Establishment Of A National Explosives Formulation Database 4.82
Creation Of A Bulletin Board For Communication Between Explosives Analysts 4.78
Creation Of A Bulletin Board For Communication Between Fire Debris 5.26
Creation Of A Library Of Manufacturers Literature 5.55
Database Of Explosives Analyst Training Manuals And Materials 5.19
Information center for inter-agency training exercises 5.65

Table 6: Ranking of Initiatives for the Fire and Explosion Communities (Investigative & Analytical)

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 63

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Under Question 12, the Needs Assessment Task Groups wanted to determine both
whether certain initiatives would be well met by the fire and explosion community and
whether the community was aware that some initiatives already existed. It asked the
respondents to rank the resource along a scale from 1 - Not at all to 7 Very
Important. The results are in table 6.

While Table 6 indicates the average ranking for all these initiatives is above the mid-
point of the ranking scale, the top five (5) resources desired are:

Creation of a national database for tracking arson matters (5.73).

Create a secure Internet link for E-mail and information exchange between
professionals (5.70).
Information center for inter-agency training exercises (5.65).
Creation of an library of manufacturers literature (5.55).
Creation of a glossary of analytical, explosives, and fire debris-related technology
(5.42).
Questions 13 and 14 sought to determine if agencies provide employees with the
opportunity to conduct research and if so, the time allowed. Of the 375 respondents
who answered this question, 54.1% indicated that they were allowed to conduct
research. The averages for the four (4) categories of research are:
Fire Debris Analysis 57.12 hours
Explosives Analysis 49.8 hours
Fire Scenes 146.30 hours
Explosives Scenes 121.92 hours
Topic Ranking
Sufficiency of explosives and fire debris publications provided by your laboratory 3.60
Interest in receiving a library of ignitable liquid standards on a regular basis 4.98
Interest in receiving a library of pyrolysis standards on a regular basis 4.75
Importance of national standards for report writing 4.90
Importance of a specific protocol for wording of both positive and negative samples 4.91
Importance of a national database for chromatographic data for ignitable liquids 5.28
Importance of a national source for ignitable liquid standards 5.52
Interest in participating in the fire and explosives debris analysis technical working
group
4.90

Table 7: Ranking of Sufficiency, Importance, or Level of Interest

The last question in the Demographics and General Section, Question 15, asked
respondents to rank the sufficiency, importance, or level of interest (from 1 = Not at all
to 7 = Very) on eight (8) topics. The most important to the respondents, as seen in
Table 7, is the maintenance of both a national database and source for ignitable liquids.
Fortunately these resources are already provided through the NCFS and T/SWGFEX.
The explosives and fire debris publications provided by agencies to their employees
was ranked the lowest and clearly shows that more references are needed in the field.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 64

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

The first grouping, Questions 16 through 32 are primarily for Fire Debris Analysts.
Some allow an assessment of the typical workload, some allow assessment of the
methods and quality control employed, and others the importance of certain classes
essential for the field.

Question 16 divides the work typically done by an agency into fire debris samples
versus ignitable liquids. Though the analyst uses the same standards to make a
determination, the distinction is in how the samples are submitted and processed.

Agency 1 to 50 51 to 100 101 to 250 251 to 500 501 to 750 751 to 1000 1001 to 2000 > 2000
Private 8 2 2 3 0 0 2 1
City 15 2 0 0 0 0 0 0
County 5 3 5 0 0 3 0 0
State 4 3 5 3 3 0 0 2
Federal 2 0 0 0 1 0 0 0

Total 34 10 12 6 4 3 2 3
Table 8: No. of Respondents Indicating the Number of Debris Samples Worked by their Agency

An examination of Table 8 indicates thirty-four (34) respondents from all five sectors
indicate that their agencies processed fewer than fifty (50) fire debris samples in 2006.
In fact, the vast majority of agencies (56) processed fewer than 250 fire debris samples
in 2006. Only thirteen (13) agencies indicated that they processed from 251 to 1000
samples. None were City laboratories and the majority were from State laboratories (6).
Only three (3) Private and two (2) State respondents indicated their laboratories
processed more than 1001 fire debris samples in 2006. Both of the state laboratories
indicated they processed more than 2000 samples in 2006.

Agency 1 to 50 51 to 100 101 to 250 251 to 500 501 to 750 751 to 1000 1001 to 2000 > 2000
Private 8 2 2 3 0 0 0 0
City 14 1 0 2 0 0 0 2
County 8 2 2 0 0 0 0 0
State 11 3 3 1 1 0 0 1
Federal 0 0 1 0 1 0 0 1

Total 41 8 8 6 2 0 0 4
Table 9: No. of Respondents Indicating the No. of Ignitable Liquid Samples Worked by their
Agency

Table 9 shows forty-one (41) respondents from four of the five sectors indicate that their
agencies processed fewer than fifty (50) ignitable liquid samples in 2006. Again, the
majority of agencies (57) processed fewer than 250 ignitable liquid samples in 2006.
Only 8 agencies indicated that they processed from 251 to 750 samples. None of the
agencies indicated processing 751 to 2000 samples. Two City, one State, and one

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 65

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Federal laboratory indicated they processed more than 2000 ignitable liquid samples in
2006.

Passive headspace sampling using activated charcoal/carbon was indicated as the fire
debris extraction technique of choice by 76.2% of respondents. This was distantly
followed by dynamic headspace sampling by 20.2% of respondents. Question 17 also
indicated that very few respondents used Tenax (3.6%) or solid phase micro
extraction (SPME) (1.2%). When asked about other adsorbents the remaining 8.3%
provided answers that indicate that they did not comprehend the question with
responses ranging from gauze pads and non-bleached flour to clay chips and sterile
pads.

The choice of eluting solvent in Question 18 indicated that 56.7% of respondents use
carbon disulfide. This solvents efficiency at stripping ignitable liquids from adsorbents
is considerable, but presents several safety issues. This may be the reason that 16.4%
indicate they use thermal desorption or SPME. Another 16.4% of respondents indicate
the use of pentane, which has been touted as a safer alternative to carbon disulfide.
Surprisingly, 9.0% indicated the use of diethyl ether that has its own significant health
hazards. Dichloromethane, which has health hazards as well, was indicated by 7.5%.
The only solvent identified by the remaining 6.0% of respondents indicated a 1:1
mixture of carbon disulfide and pentane.

The use of an internal standard either added to the debris during extraction or to the
solvent was indicated by only 15.1% and 15.2% of respondents respectively as
indicated in Questions 19 and 20. For those adding an internal standard to the debris,
it appears that the use of 3-phenyltoluene is the most common. There is not a common
internal standard indicated for those who add it to their solvent. With the vast majority
of respondents not indicating the use of an internal standard, the practice should be in
question. While it is common practice in many other fields of analytical chemistry, the
question is why fire debris analysts do not use it.

Question 21 assesses the usage of various types of instrumentation employed in fire

debris analysis. The scale is 1 = Never and 7 = Exclusive. Clearly at an average rating
of 6.08 the most common instrumental method is gas chromatography with mass
spectroscopy (GS-MS). This is followed by Gas Chromatography with Flame Ionization
Detection (GC-FID) at a rating of 2.29. GC-FID has been shown not to be as effective
or efficient in the analysis of fire debris as GC-MS. This may indicate a problem with
getting the GC-MS technology to some laboratories.

Split solvent injection mode (69.4%) with analysis on a 100% polydimethylsiloxane

column (58.8%) or 5% phenylmethylpolysiloxanne: 95% polydimethylsiloxane were
parameters indicated in Questions 22 and 23. These responses were expected and are
anecdotally accepted as being the most common in use by the relevant community.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 66

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Quality Assurance/Quality Control measures are necessary to provide acceptable levels

of dependability when performing chemical analyses. Forensic analysis of fire debris
should not be an exception. Question 24 assessed the commonality of certain of these
QA/QC procedures where the scale was 1 = Never and 7 = Exclusive:

QA/QC Technique Ranking

ASTM 1387 test mix or similar mixture 5.09
Internal Standards (e.g., 3-phenyltoluene) 2.90
Solvent Blanks 5.68
Apparatus Blanks (e.g., strips, glassware) 5.16
Recovery Checks (e.g., simulated case extractions) 3.19
Peer Review 5.72
Other: (specify) 5.50
Validation kits (NFSTC)
Proficiency Tests
Ignitable Liquid Reference Materials

Table 10: Ranking of QA/QC Techniques

As seen in Table 10, Peer Review ranked as the most common measure followed
closely by the use of solvent blanks. Apparatus blanks and the use of the ASTM E1387
test mix also ranked above 5.

Question 25 sought to determine the level of conformance to the provisions in various

ASTM methods. Again the scale is 1 = Never and 7 = Exclusive:

Standard # General Topic Rank

ASTM-E 1387-01 Analysis by GC-FID 4.00
ASTM-E 1618-06 Analysis by GC-MS 5.69
ASTM-E 1385-00 Extraction by Steam Distillation 2.03
ASTM-E 1412-00(2005) Extraction by Passive Headspace 5.00
ASTM-E 1413-06 Extraction by Dynamic Headspace 2.08
ASTM-E 1388-05 Simple Headspace 3.33
ASTM-E 1386-00(2005) Solvent Extraction 4.12
ASTM-E 1492-05 Receiving and Handling Evidence 5.03
ASTM-E 1459-92(2005) Evidence Labeling and Documentation 5.00

Table 11: Ranking of Conformance to ASTM Guides

The analytical method of most common use is again confirmed as GC-MS, but GC-FID
ranked higher than expected as is seen in Table 11. Of the extraction techniques, the
use of Passive Headspace as the most common was also confirmed. The fact that
solvent extraction ranked above 4 would indicate that it is also used by many
laboratories. It is disturbing to note that simple headspace was ranked as high as it is,
considering that the technique should be limited to screening.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 67

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

When queried as to new equipment and techniques available to fire debris analysts,
85% of the respondents to Question 26 indicated no. Those who responded yes
were asked to describe the equipment and techniques. The following is a synopsis:

New software for comparison of data.

Tandem GC-MS (GC-MS-MS).
Two-dimensional GC with MS (GC X GC-MS).
Flash Chromatography.
Pyrolysis product database.
Fourier Transform Ion Cyclotron Mass Spectroscopy (FT-ICMS).
Stable Isotope Ratio MS.
DART sample introduction.
Alternative Light Sources (scene investigation).
GC with Infrared and mass detection (GC-IRMS).
Time-of-flight GC-MS.

Questions 27 and 28 directly asked respondents to assess the needs of fire debris
analysts. Question 27 focused on the short-term needs and Question 28 on the long
term needs. In review of the responses it was noted that there were several responses
which were listed in both. The following lists of suggestions were prepared by
consolidating similar responses.

Short Term Needs in Fire Debris Analysis:

Improvements to turnaround for processing evidence.

More personnel.
Improved software for analysis and comparison of data.
More information on pyrolysis products and interference compounds inherent to
matrices.
Improved chromatographic resolution.
Improved and greater access to reference materials and standards.
An extraction procedure which can replace the use of carbon disulfide without
sacrificing efficiency (solvent free and improved desorption).
More training for personnel.
Financial assistance to laboratories.
Development of a field gas-chromatograph with sufficient ease of use and
accuracy to allow high quality presumptive analyses on the scene.
Place a GC-MS in all laboratories.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 68

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Long Term Needs in Fire Debris Analysis:

Enhanced ability to compare ignitable liquids from separate sources at a level

where individualization (similar to DNA analysis) can be made.
Improve the library search function of the Ignitable Liquid Reference Collection
database currently posted on the NCFS database.
Greater access to extraction and analysis standards and procedures.
Training in advanced organic chemistry for analysts.
Enhanced sharing of data between laboratories.
Seek and promote consistency in wording between reports from various
laboratories.
Greater understanding of the effect of ignitable liquids on bodies.
Increase understanding and adherence to American Society for Testing and
Materials guidelines and test methods.
Cross-training in the scientific method for investigators and analysts.
Lower cost and more affordable instrumentation.

The responses to Question 29 were disturbing. The question sought to determine if the
respondents used an in-house ignitable liquid reference collection in casework. ASTM
E1618 and E1387 both require that analysts compare the data of an unknown against
the data of reference materials analyzed on the same instrument. With only 25.4%
indicating that they do this in every case and 18.4% indicating often, it appears that
the majority of respondents are not in compliance (18.4% reported sometimes, and
37.7% reported never).

Question 30 asked if the respondents used the on-line reference collection data
available through NCFS and found that 59.5% of the respondents answered never
while a scant 1.8% answered every case. Those responding with sometimes made
up 28.8% and those who indicated often only 9.9%. These responses may be
interpreted to indicate that NCFS needs to promote this resource more widely.

Previous questions asked about extraction procedures and instrumentation. Question

31 asked, How does your laboratory routinely identify an ignitable liquid in fire debris?
The overwhelming response at 73.2% was pattern recognition by mass
chromatography (extracted ion chromatogram or extracted ion profile). The next
highest at 12.7% was other. The majority of those responses indicated use of multiple
combinations of all of the listed choices. These responses appear to be consistent with
the majority responses received on extraction and instrumentation.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 69

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

The last question specific to fire debris analysts (Question 32) asked them to rank the
importance of various classes to the training of a fire debris analyst (Table 12). It was
not noticed until after the return of the surveys that the choice of Advanced Physics
was listed twice. We will use the responses from the first iteration only, thus the
percentages reported here were derived from the analysis of the raw data after
redacting the secondary response. The choice of other only had four responses and
will be discussed later. The ranking was from 1 = Not Important, to 4 = Moderate, to
7 = Extremely. Out of a total of 90 responses, the choice of Instrumental Analysis
was ranked highest at 6.30, and Organic Chemistry was ranked second highest at
6.16 Third was General Chemistry at 6.02, ranked by 91 respondents. The table
below shows all classes, the rankings, and the number of respondents:

Class Respondents Mean Rank (1 to 7)

Other: 4 6.33
Instrumental analysis 90 6.30
Organic chemistry 90 6.16
General chemistry 91 6.02
Analytical chemistry 87 5.88
Advanced organic chemistry 90 5.48
Inorganic chemistry 91 4.67
Introductory physics 90 4.67
Physical chemistry 88 4.25
Advanced physics 87 3.70
Advanced mathematics 87 3.57

Table 12: Ranking of Training Classes for Fire Debris Analysts

As stated earlier, the choice of other was input by only four respondents and the mean
ranking of 6.33, while technically the highest, was not considered valid in relation to the
other classes. While the respondents who entered other were not many, the
suggestions they listed should be considered. They are: spectroscopy with structural
elucidation, combustion gas analysis, digital imaging, and logic.

Explosive % Yes % indicating 1 to 50 samples

Intact Low Explosives 44.9% 53.2%
Intact High Explosives 26.0% 32.8%
Intact IEDs 35.1% 40.0%
Post-Blast Low Explosives 56.6% 55.4%
Post Blast High Explosives 21.3% 26.2%
Post Blast IEDs 42.5% 40.6%
Intact Incendiary Device 48.1% 49.2%
Post-Reaction incendiary 47.4% 45.3%

Table 13: Types and Percent of Analyses Performed by Respondents

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 70

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Question 33 began the sections specific to explosives analysts. From Questions 33 to

40 (summarized in the % Yes column of Table 13), the determination was whether or
not the respondent performed the analysis in 2006. Questions 41 to 48 (summarized
in the % Indicating 1 to 50 Samples column of Table 13) asked the respondent to
indicate the number of samples processed by their laboratory.
In Question 49, respondents were asked to indicate their ranking of the frequency
which they utilized various forensic techniques with the scale of 1 = Never and 7 =
Exclusive. The following, Table 14, is a summary of the responses with the mean
from all respondents sorted from highest rank to lowest rank:

Technique Mean Ranking (1 to 7)

Ignition analysis 3.50
IR 3.20
FTIR 3.17
GC/MS 2.88
SEM-EDX 2.83
Other: 2.70
Microchemical analysis using stereomicroscopy 2.45
Microchemical analysis using PLM 2.42
Spot tests 2.25
IC 2.10
XRF 2.00
Field explosives screening 1.78
TLC 1.76
Raman spectroscopy 1.57
GC/FID 1.46
HPLC 1.46
XRD 1.46
HPLC/MS 1.46
GC/ECD 1.27
CE 1.26
GC/TEA 1.23
ICP 1.21
HPLC/TEA 1.21
IMS 1.21
NMR 1.13
SEM-WDX 1.11
Table 14: Ranking of Explosives Analytical Techniques

The top five (5) responses were Ignition Analysis, Infrared Spectroscopy, Fourier
Transform Infrared Spectroscopy, Gas Chromatography with Mass Spectroscopy,
Scanning Electron Microscopy with Energy Dispersive X-Ray detection. However, it
must be noted that none of the responses ranked above 3.5 and the top three are the
only ones above 3.0. The next eight (8) responses in the table are clustered between
2.0 and 2.99. The reason for this is most likely that the sheer variety of explosive
compounds and mixtures often require the use of multiple techniques to make a
determination.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 71

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

For Question 50, 86% of the respondents indicated that they were not aware of new
techniques, instruments, or methods for explosive analysis. In Questions 51 and 52
respondents were asked to indicate their sense of the short and long term needs for
explosives analysis. In review of the responses it was noted that there were several
responses which were listed in both. The following lists of suggestions were prepared
by consolidating similar responses.

Short Term Needs in Explosives Analysis:

Education and training in the production of improvised and homemade devices

and materials. What is out there?
Collation and dissemination of comprehensive analytical methods covering
multiple analytical techniques. If one is unavailable, what else can be used?
Basic and Advanced training in the comprehensive analysis of explosives
(analytical methods/techniques, compositions, reactions, dynamics).
Explosive Materials Database and reference collection.
Financial assistance.
Digital Imaging Training.
Improvements to the use of robotics technology.
Improvements to sample collection.
Improving field analyses and their value (instruments, presumptive tests, etc.).
Improvement of communication between analysts and investigators.

Long Term Needs in Explosives Analysis:

Information and data sharing between agencies with significant resources

(federal and some state) and those who are resource challenged.
Chemical derivatization protocols to allow alternate analytical methods.
Reduced cost of instrumentation.

Procedure Mean Ranking (1 to 7)

8095 Calibration Mix A 1.47
8095 Calibration Mix B 1.47
Smokeless Powder (or similar) mixture 3.37
Internal Standard (please indicate): 1.57
Solvent Blank 3.62
Peer Review 3.79
Other: 3.16
Table 15: Ranking of Explosives QA/QC Procedures

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 72

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Question 53 sought to determine the use of various Quality Assurance and Quality
Control procedures and methods in explosives analysis. Table 15 summarizes the
results. The scale ran from 1 = Never to 7 = Exclusive. The only internal standard
indicated was 5-nitro-2-fluorotoluene. The primary other QA/QC procedures listed
were proficiency testing and comparison of unknowns to explosives and chemical
standards.

The respondents (82) under Question 54 indicated that 36.6% never, and only 37.8%
sometimes used an internal explosives reference collection in casework. This result
was discouraging. The question becomes, how do these analysts assure themselves of
an identification without comparative data? Question 55 regarding the use of an on-
line collection of explosives data by the respondents (79) provided more encouraging
results. Those who selected sometimes (38%) and often (34.2%) were the clear
majority.

Similar to Question 32 for Fire Debris Analysts, Question 56 asked respondents to

rank the importance of various courses as part of the education of an explosives
analyst. Again the scale ran from 1 = never to 7 = extremely. The results after
isolation and examination of the raw data inputs are summarized and sorted from
highest to lowest ranking in Table 16:

Courses for Explosives Analysts Mean Ranking (from 1 to 7)

Explosives analysis 6.56
Introduction to explosives 6.40
The chemistry of pyrotechnics 6.33
Chemical analysis of explosives 6.17
Combustion explosions 6.03
Instrumental analysis 6.00
General Chemistry 5.77
Inorganic chemistry 5.60
Analytical chemistry 5.53
Organic chemistry 5.47
Advanced organic chemistry 5.30
Introductory physics 5.07
Physical chemistry 4.77
Advanced physics 4.30
Advanced mathematics 4.17
Other: 6.50
Table 16: Ranking of Importance of Courses of Study for Explosives Analysts

The items indicated under other are blast effect calculations and safety

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 73

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Question 57 sought to rate additional training and course work in the professional
development of an explosives analyst. Again the scale ran from 1 = never to 7 =
extremely. The results after isolation and examination of the raw data inputs are
summarized and sorted from highest to lowest ranking in Table B17:

Training/Continuing Courses Mean Ranking (1 to 7)

Analytical examination of high and low explosive materials
6.50
and residues
Composition of low explosive materials 6.20
Construction of improvised devices 6.13
Recognition of improvised device components 6.11
Manufacturing of explosives 6.00
Construction of military devices (e.g. simulators, rockets,
5.97
hand grenades)
Composition of high explosive materials 5.95
Construction of commercial pyrotechnic devices 5.94
Peroxide Based Explosives 5.92
Terminology and vocabulary of explosives 5.85
Range procedures 5.51
History of Explosives 4.88
Other: 5.50
Table 17: ranking of Additional Training for Professional Development of Explosives Analysts

Questions 58 through 69 were designed to assess opinions of those who identified

themselves as fire scene investigators.

The first question of this group, Question 58, asked them to indicate the number of fire
scenes processed in 2006 by all the investigators at their particular location. The
largest grouping indicated by the 270 respondents indicated that 48.1% worked from 1
to 50 scenes. Significantly, 15.2% indicated they worked from 51 to 100 scenes, 15.2%
indicated they worked from 101 to 250 scenes, and 12.2% indicated they worked 251 to
500 scenes. The number of individuals indicating they worked 501 to > 2000 scenes
was only 9.3% of respondents.

The majority of respondents, 94.8%, indicated that they have had formal training in fire
scene investigation in Question 59. Another majority, 85.1%, indicated that formal
training was very important in the investigation of fire scenes.

Question 60 asked respondents to identify the types of containers used to secure

evidence by percentage of time used. Clean unused paint cans were indicated as being
used 78.82% of the time. Glass jars and vials were indicated as being used 21.58% of
the time and Nylon bags 16.8% of the time. The items listed in other included a
number of entries for Kapak bags and the respondents were unaware that they are
included in the nylon bag category. There were a significant number of entries stating
the use of paper bags. It is hoped that these are used for non-fire debris evidence as
they are useless in securing fire debris for ignitable liquid determination.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 74

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

In Question 61 respondents were asked to identify the equipment essential to help you
process fire scenes. In Question 62, respondents were asked to identify equipment
desirable to help you process a fire scene. All entries were free text entry and not from
a pre-set list which led to a significant variety in the responses. The lists of entries were
examined and significant repetition and overlap was noted. Many of the responses
have been combined, with similar entries being consolidated, and summarized in the
lists below:

Equipment Essential to Processing Fire Scenes:

Accelerant Detection Canine team.

Hand tools (e.g., saws, chisels, hammers, screwdrivers, pry bar, etc.).
Power tools (e.g., saws, drills, etc.).
Gloves (both disposable and protective).
Personal protective and safety equipment (e.g., hard hat, coveralls, respirator,
etc.).
Shovels, rakes, and scoops.
Cameras (both still and video).
Screens and sieves.
Knives (various).
Tape measure, GPS, laser measuring devices.
Magnets.
Fingerprint, trace evidence, and impression evidence kits.
Heavy debris removal equipment (e.g., forklifts, cranes, bulldozers) depending on
the scene.
Directional and evidence flags.
Vehicle for transport of tools.
Gas/hydrocarbon sniffer/detector.
Ultraviolet light source.
Portable lighting for night work.
NFPA 921 and other authoritative reference books.
Brooms and brushes.
Ladders.
Generator.
Circuit Tester/Volt/Ohm meter.
Information recording tools (e.g., pens, paper, voice recorder, etc.).
Buckets.
Water and soap for decontamination and cleaning.
Laptop with software necessary (e.g., word processing, digital photo archiving,
CAD software, etc.).

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 75

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Equipment Desired for Processing Fire Scenes:

Multigas detector/electronic nose.

Laser scanners and measuring.
Panoramic cameras.
Portable X-Ray units.
Portable/Handheld chemical identification equipment (e.g., GC-MS, FTIR,
Raman).
Mobile Internet access.
Advanced scene documentation tools (e.g., laser, CAD, etc.).
Thermal imaging.
Fire Modeling software.

Question 62 also asked if the respondent or their agency had access to an accelerant
detection canine team. Of the 260 respondents, 69.2% indicated they have access to a
canine team. Half of the respondents indicated that such a canine team would be used
in only 1 to 20% of their cases. For 22.9% of the respondents the canine team would
be used in 21 to 40% of their cases. Only 16.7% of the respondents went so far as to
state that canines would be used in 41 to 60% of cases. Thus, very few, 10.4%, would
use canines in more than 61% of their cases.

As a corollary, 48% of respondents said they had access to an electronic sniffer and
46.4% said they did not. Of the respondents, 31.6% indicated that an electronic sniffer
would be used in 1 to 20% of their cases. For the grouping of 21 to 40% of cases, the
number of respondents dropped to 13.2%. For each of the three remaining groupings,
41 to 60%, 61 to 80%, and 81 to 100% of the time, the number of respondents was
evenly distributed with 18.4% of the respondents in each group.

Question 63 asked if the respondents agency had a specific criteria for activation of a
canine unit. The majority, 67.9%, indicated they did not. The follow up question asked
the respondent to describe the criteria. The answers were considerably varied and the
reader is directed to the Vista survey in the appendix.

Only 33.3% of respondents indicated their agency tracked the usage of the accelerant
detection canine in each investigation (Question 64). Only 28.1% of respondents
indicated that the canines positive to negative hit rate was tracked (Question 65).
Skipping to Question 67, 72.8% of respondents think they would benefit by having
access to a national/international database of certified accelerant detection canine
teams.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 76

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

When asked if investigators had access to other forensic laboratory tests in addition to
fire debris/ignitable liquid analyses, 57.1% of the respondents answered no in
Question 66. Only a very slight majority of respondents (50.4%) indicated they had
access (on-scene, by telephone, or email) to a fire debris analyst/scientist for
consultation while working a scene (Question 68). In Question 68a, 61.5 % of the
respondents who indicated that they had access to a scientist indicated that in 2006
they called upon this expertise 1 to 5 times. In Questions 69 and 69a, 91.7% of the
respondents who answered that they did not have access to a scientist, indicated that
this type of access would be desirable. They further ranked the importance of this
access using the scale of 1 = Not at all to 7 = Very with 29% of respondents ranking
this service at 7 (very desirable). For rankings of 5 or 6, 26.2% and 22.1%
respectively indicated a positive level of importance.

Questions 70 through 89 were designed to be specific to Explosion/Bomb scene

investigators. Of the 157 respondents to Question 70, 87.3% indicated they worked
from 1 to 50 cases in 2006. On the issue of having received formal training, 76.8% of
the respondents to Question 71 answered yes and in Question 72, 83.2% indicated
that formal training was very important in the investigation of bombing crime scenes.

Question 73 assessed the types of sampling containers used to package debris

collected from explosives scenes and found that clean unused paint cans were used by
62.1% of the respondents in 61 to 100% of their cases. For 1 to 20% of their cases,
49.0% of the respondents used glass jars and vials and 47.1% used nylon bags. The
remaining types of containers commonly indicated in the other selection were various
paper evidence bags.

The results for Question 74 on the equipment essential to help you process bombing
scenes are the same as for Questions 61 and 62 with the following additions:

Explosive Ordnance Disposal suits (Bomb Suits).

X-Ray machine.
Disruptors.
Metal detector.
Explosives swab kits.
Presumptive explosives identification wet chemical kits.
Robots for unmanned approach and entry.
Non-sparking tools.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 77

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Question 75, that asked which equipment is desirable, is also similar to the responses
in Questions 61 and 62 with the following additions:

Better evidence preservation and sampling technology (includes vapor sampling

and preservation).
Explosives Detection Instruments for field use (e.g., Ion Mobility Spectroscopy,
Raman Spectroscopy, FTIR spectroscopy, etc.).
Portable wet chemical explosives identification kits.
Mobile Command Center.
Equipment that can elevate the investigator above the scene.
Bomb Component Blanket.
Blast Modeling Software.

Question 76 asked if the respondents used the equipment they listed and 85.2%
replied yes. Question 77 asked respondents what training was desired. The
following are the training/classes listed by respondents (after consolidation and sorting):

Advanced post-blast training with hands-on experience at a live experimental

scene.
The chemistry of explosives.
Bomb scene evidence sampling, collection, and preservation.
Scene excavation.
Recognition of the blast effects of high or low order explosives on various scenes
(as a method to assess presumptively the type used upon arrival at a scene).
Using advanced scene documentation equipment.
WMD scene investigation.
Anti-terrorism training.
Partnering with federal agencies for on-scene experience.
Basic EOD for the fire service.
Using mapping tools and documentation to prepare a land survey of a scene.

Under Question 78, 64.4% of respondents indicated they had access to and used an
explosives detection canine. For Question 79, 53.7% of the respondents indicated that
they used a canine explosives detection team from 1 to 20% of the time. Only 16.3%
indicated using such a team for 81 to 100% of the time. The respondents to Question
80 indicated that 62.8% did not have a specific criteria for calling out the canine team.
The follow- up question asked the respondent to describe the criteria. The answers
were considerably varied and the reader is directed to the Vista survey in the
appendix.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 78

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Only 37.1% of respondents indicated their agency tracked the usage of explosives
detection canines in each investigation (Question 81). Only 30.6% of respondents
indicated that the canines positive to negative hit rate was tracked (Question 82). In
Question 83, 69.3% of respondents think they would benefit by having access to a
national/international database of certified explosives detection canine teams.

When asked if investigators had access to forensic laboratory experts for consultation in
explosives while investigating a bombing scene, 52.4% of the respondents answered
no in Question 84. In Question 85, 76.5 % of the respondents who indicated that
they had access to a scientist, indicated that in 2006 they called upon this expertise 1 to
5 times. In Question 86, 96.1% of the respondents who answered that they did not
have access to a scientist, indicated that this type of access would be desirable. For
Question 87, they further ranked the importance of this access using the scale of 1 =
Not at all to 7 = Very with 46.4% of respondents ranking this service at 7 (very
desirable). For rankings of 5 or 6, 14.5% and 20.5% respectively indicated a positive
level of importance.

Question 88 asked respondents to estimate the number of scenes containing various

types of explosives which they worked in 2006. The vast majority either did not work
that type of device or the number of incidents was few (between 1 to 20), see Table 18.

Scenes Containing: Percent indicating 0 Percent indicating 1 to 20

Intact Explosives 40.00% 50.40%
Intact IED 51.90% 40.50%
Post Blast Explosives 39.30% 56.40%
Post Blast IED 52.30% 43.10%
Intact Incendiary Device 35.00% 60.70%
Post Reaction Incendiary Device 39.40% 53.30%
Table 18: Estimate of the Number of Scenes with Specific Types of Explosives

Question 89 sought to determine the number of times that a respondent was called
upon to render safe a device and the methods used to accomplish the task. Table 19
provides a synopsis of the data:

Render Safe Method 0 occasions 1 to 20 occasions

Hands on 54.30% 43.20%
Remote Cutter 75.00% 22.20%
Disrupter 28.30% 46.70%
Other 57.80% 33.33%
Table 19: Render Safe Method and the Number of Occasions Used

It must be additionally noted that another 13% of respondents used the Disruptor from
21 to 50 times and 8.7% indicated Disruptor use from 51 to 100 times.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 79

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Questions 90 through 100 were designed to assess laboratory research needs. Many
of the questions asked respondents to write their opinions and comments as free entries
instead of simply checking a box. Those with free entries were examined, and insofar
as possible, were consolidated by combining similar comments and opinions. Answers
which were flippant or not relevant to the laboratory analysis of fire debris or explosives
were not considered.

Question 90 was one of these questions. It asked, What major breakthrough in the
area of ignitable liquid or explosives analysis would have the most impact on the area of
forensic science (think big the sky is the limit)? The following is the synopsis of the
written responses:

A simple to use, portable, cost effective, validated instrument that can reliably
produce presumptive identifications of ignitable liquids from samples (with
minimal sample preparation) while at the scene. Portable GC-MS instruments
were suggested.

A simple to use, portable, cost effective, validated instrument that can reliably
produce presumptive identifications of explosives from samples (with minimal
sample preparation) while at the scene. Portable GC-MS or IMS instruments
were suggested.

Instrumental software that can reliably match data from unknowns to library
reference standards and can provide a realistic probability index of a match
against a specific ASTM class of ignitable liquid.

Research instrumental methods, software, or new instruments that will allow the
exclusion of interfering compounds and pyrolysis products so that only ignitable
liquid components are seen.

The introduction of taggants or chemical markers in ignitable liquids that will not
be destroyed or altered by fire and will allow identification of the specific ignitable
liquid and identify the manufacturer or brand of ignitable liquid.

Instrumentation and/or software that will allow a probability match of ignitable

liquids found at a scene to ignitable liquids in the possession of the suspect or
from specific sources. DNA for fire debris analysis.

Improved and low or no cost access to a database listing relevant scientific

research (for fire debris and explosives analysis) which has been peer reviewed
and published. The ability to obtain specific articles at low or no cost without the
need to subscribe to the publication is also requested.

Research into the source determination of explosive residue compounds found in

a sample versus the same compounds inherent or produced in the scene. For
example, could stable isotope ratio MS tell you if the nitrate anion found in a soil

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 80

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

sample has the same ratios as the nitrate anion from different sources. These
may be the fertilizer previously added to the soil or the black powder in the
possession of the suspect. Other instrumentation may work as well and could be
used so long as there was a differentiation.

Federal financial support to provide low or no cost portable instruments for on-
scene testing (Ion Mobility Spectroscopy, portable Raman, portable FTIR, etc.).

Research into alternate extraction technologies which would reduce the presence
of background interferences (supercritical fluid extraction for example).

A single comprehensive analytical technique for identifying any compound

(organic or inorganic) extracted from explosive residue (Fourier Transform Ion
Cyclotron Mass Spectroscopy was suggested as an existing technique which
needs research).

Research into the persistence of ignitable liquids on footwear or tracked by

footwear onto different substrates.

Research into the deterioration rates of various ignitable liquids based on

variables such as time of exposure, temperature, air flow over the ignitable liquid,
and the absorptive protection provided by various matrices.

Video documentation of the investigation or analysis which could be used to

show the jury exactly what was done by an investigator or analyst.

Prepare and distribute testing kits that can be used to assess initially the identity
of explosives or ignitable liquids at a scene.

Determine the likelihood of determining DNA from evidence in a fire or bombing.

Research into the differentiation of terpenes found inherent to natural wood

versus those found in commercial solvent products.

Research into the use of alternate light sources as tools to aid in determining the
areas with ignitable liquids in fire scenes.

RSP of HMEs or PBEs. Not spray misting but actual RSP methods.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 81

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Question 91 asked the respondents to rank several research areas in terms of whether
the research area would have a significant impact on ignitable liquid or explosives
analysis. The scale for ranking is 1 = not likely, 3 = is possible, 5 = is probable,
and 7 = extremely likely. Table 20 lists the research area then indicates the
percentage of respondents who selected a ranking of 5, 6, or 7.

Research Area % Ranking 5 % Ranking 6 % Ranking 7 Total of 5, 6, & 7

New Analytical Methods 28.70% 11.10% 30.60% 70.40%
New and Improved Databases 23.40% 16.20% 40.50% 80.10%
New Data Analysis Methodology 27.80% 7.40% 32.40% 67.60%
New Standards 24.10% 4.60% 24.10% 52.80%
Sample archiving practice/method 19.40% 8.70% 30.10% 58.20%
Table 20: Ranking the potential Impact of Areas of Research in Ignitable Liquid & Explosion
Analysis

Once the totals for the rankings of 5, 6, or 7 are viewed, the respondents indicated that
New and Improved Databases followed by New Analytical Methods and New Data
Analysis Methodology are the areas probable to most likely to have an impact.

For 93.0% of the 115 respondents to Question 92, the need for additional research in
the area of explosives disposal/disruption is clearly yes. In Question 94, the ranking
of the importance of an analysts knowledge of the fate and transport of explosives in
the environment as related to forensic casework was ranked at 7 or urgent by 36.9%
of respondents and at 5 or very important by 26.2%. When asked about the push to
lower detection limits in the analysis of explosives (Question 95), 64.5% of the
respondents ranked the subject from is very important to urgent.

In Question 93, the respondents were asked to indicate the most significant
improvement on the efficiency of useful sample collection at the fire and explosive
scenes. The response with the highest percentage (36.3%) was New field
instrumentation/sensors to aid in sample selection. The second highest response
(32.7%) indicated the need for Training of sample collection personnel.

Question 96 is another free entry question that asked fire and explosives analysts to
identify their greatest challenges. The list is below.

Maintaining a turnaround time (from the submission of the samples to the issuing
of a report) that is low enough to allow the report to be useful while the
investigation is open, yet long enough to insure proper and adequate analysis
and evaluation.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 82

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Obtaining training and education at a professional level that is affordable to an

agency with budget considerations and can be scheduled to avoid a hardship on
the agency.

Receiving adequate and appropriate comparison samples from the scene. This
promotes being able to determine if the trace ignitable liquid in the sample was
inherent to the matrix/scene or foreign to the scene (an accelerant).

Budget restrictions to negate the ability to purchase equipment or hire more

personnel. As a result, many of us are forced to use obsolete equipment.

Inadequate staffing levels to meet the workload.

Communication and cooperation between the investigators and analysts and

from one agency to another. Roadblocks to sharing information with peers.

Advising investigators of the best and worst areas for sample collection in the
scene with a follow-up on proper and adequate packaging and preservation of
the samples collected.

References and a better understanding of pyrolysis products. A pyrolysis

product database.

Having the research, data, and references to allow a determination of the

presence of an explosive though many of the post-blast residues are individually
considered inherent to a scene or innocuous.

Working with prosecutors to train them in our capabilities and more importantly,
our limitations. Keeping open dialogue with prosecutors or other attorneys so
they fully understand what you can and cannot say when on the stand.
Encouraging pleas when appropriate and pursuing prosecutions when justified.

Having access to ignitable liquid reference standards. Knowing about new

petrochemical products that could be used as accelerants. Open
communications with the petrochemical industry.

Not being able to make probability match comparisons between samples from a
scene and a suspect with the same level of certainty as DNA analysts.

Awareness and familiarity with NFPA 921 so that it does not become a tool to
attack the work that you did, but rather a source to show that you were objective.

Inadequate funding for research into fire and explosion dynamics as well as
analytical methods and instruments.

How to assess the reputation and objectivity of experts brought in to conduct an

investigation or analysis.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 83

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Proper scene security and preservation until the public investigator can conduct
his investigation. Timeliness of transferring the scene from public to private
investigation.

Awareness and training in new legal issues which affect the investigation,
analysis, and testimony.

Availability of forensic engineers to public agencies for investigation of electrical

fires.

Raising the forensic and scientific awareness and training of investigative

personnel. Teaching the scientific method as applied to investigations.

Raising the national standards on bomb squads to ensure that only properly
trained and adequately equipped squads are working.

Greater understanding and information on the identification of peroxide based

explosives.

Greater understanding and awareness of trends and procedures in homemade

explosives and improvised devices. Staying one step ahead of the bomb
makers.

Understanding and support by those outside of the agency or laboratory that may
not be knowledgeable about the particulars of your job. Getting administrators
and politicians to not attempt to micro-manage areas outside of their expertise.
Getting them to treat and trust the agency/laboratory representative as then
subject matter expert and avoid second guessing them.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 84

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Question 97, What area(s) of your investigation analysis is (are) most frequently
challenged in court?, asked respondents to list up to three (3) items. The varied
answers required considerable review and consolidation. The following table
represents not only the consolidation but also a sorting of the frequency of similar
responses as interpreted by the Needs Assessment Committee. The most common
responses are listed first:
Expertise/Qualifications - Including accreditation and/or personal Certification(s)
Origin and Cause (i.e., elimination of all other potential causes).
Selection, Collection and packaging of the evidence.
Choice of analytical methodology/Quality of the analysis.
Identification of a suspect/motive/intent.
Chain of Custody.
Significance and relevance of findings or results.
Interpretation of laboratory data and formulation of results for report (GC-MS or
other instrumental data).
Education and training received (i.e., type, amount, and relevance).
Documentation of the scene.
Assessing the potential for contamination of the sample.
Connecting the suspect and the evidence.
Where the ignitable liquid originally came from.
Knowledge of NFPA 921.
General Expertise in the field.
Bias for employer/client.
Consideration of the contribution from pyrolysis/matrices.
Hesitance of prosecutor to proceed to trial.
Use and significance of a canine.
Completeness/quality of written report.
Spoliation.
Determining the explosive potential of devices.
How long the ignitable liquid was there before the fire.
Ability to compare recovered ignitable liquids.
Determination of the source of ignition.
How the type of explosive was determined.
Possible electrical causes.
Overall investigative process.
Quantification of the amount of ignitable liquid found or used.
Gunshot residue analysis.
Engineers.
Initial and over all assessment of scene.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 85

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

The significance of Daubert/Frye standards when introducing a new analytical method,

technique, or instrument into a laboratory was ranked by respondents on a scale of 1 =
not at all, 3 = fairly important, 5 = very important, and 7 = urgent in Question 98.
The majority (26.2%) ranked the issue as 5, very important. The second highest
percentage of respondents (21.5%) ranked this issue at 7, urgent. The third highest
percentage (15%) ranked the issue at 6 which would be between very important and
urgent. If we total the percentage of responses ranking this issue above 5 or very
important, the total is 62.7% and the significance is clearly seen.

Question 99 asked respondents if the creation of a new practices review panel

comprised of academic and practicing forensic scientists would facilitate the
implementation of new methods in the view of the courts. The majority of respondents
were ambivalent on this issue as 56.3% responded possibly. It must be noted
however that a full 38.1% of respondents answered a definitive yes and only 5.6%a
definitive no.

The last query, Question 100, asked if laboratory analysts are interested in
collaborating with university researchers to implement new and/or field methods. Again
the majority of respondents (46.6%) answered possibly. This time however, 23.3%
answered no and 30.2% answered yes.

The above synopses lists and tables were assembled in an attempt to clarify how the
Needs Assessment Committee viewed the results. Even among committee members
there may be disagreement as to the significance or interpretation of the data. The
reader is urged to review the full survey results included in the attached appendix.

Please be aware that additional or differing opinions concerning the results of the
survey are possible. The opinions contained herein were developed by consensus by
the Needs Assessment Committee members and representatives of T/SWGFEX.

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 86

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Appendix C. Tables of Survey Questions

Their Relationships to Planning Sub-Committees

Analytical Training
Analytical Methods Technology Technology Training for General and
Q# Fire Debris
Methods
Fire Debris Explosives
for Fire
Explosives Demographics
Explosives Debris
Demographics and
A General Questions
1
2
3
4
5
6
Professional
B Development
7
8
9
10
11
12
13
14
15
Fire Debris Analysis
C Casework
16
Fire Debris Analysis
D Analytical Methods
17
18
19
20
21
22
23
24
25
26
27
28
Fire Debris Analysis
E Data Interpretation
29
30
31
32
Table C1: Questions 1 To 32 And Their Relationship To Planning Sub-Committees

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 87

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Analytical Training
Analytical Methods Technology Technology Training for General and
Q# Methods for Fire
Fire Debris Fire Debris Explosives Explosives Demographics
Explosives Debris
Explosives Analysis
F Casework
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Explosives Analytical
G Methods
49
50
51
52
53
Explosives Data
H Interpretation
54
55
56
57
I Fire Scene Investigation

58
59
60
61
62
63
64
65
66
67
68
69
Table C2: Questions 33 To 69 And Their Relationship To Planning Sub-Committees

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 88

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Analytical Training
Analytical Methods Technology Technology Training for General and
Q# Methods for Fire
Fire Debris Fire Debris Explosives Explosives Demographics
Explosives Debris
Explosives Scene
J Investigation
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
Laboratory Research
K Topics
90
91
92
93
94
95
96
97
98
99
100

Table C3: Questions 70 To 100 And Their Relationship To Planning Sub-Committees

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 89

Chasteen, Author/Editor (Final Version), January 2008
 FINAL VERSION

Appendix D. Vista Survey Results and Survey (see following pages)

TWGFEX Needs Assessment (FY-2006, 2005-MU-MU-K044, Supplement No. 1) 90

Chasteen, Author/Editor (Final Version), January 2008
 Survey Results
& Analysis

for

Survey of Forensic Laboratories and Scene

Investigation

Account: NCFS

Monday, September 17, 2007 10:09:46 AM

Vista Survey System

Introduction

This report contains a detailed statistical analysis of the results to your survey named Survey of Forensic Laboratories and Scene
Investigation. The results analysis includes answers from all respondents who took your survey in the 94 day period from
Wednesday, June 13, 2007 to Friday, September 14, 2007 inclusive.

Report Contents

This report is divided into four sections:

1. Introduction
2. Results Analysis
3. Questionnaire
4. Notes

The Introduction (this section) contains an overview of the report structure.

The Results Analysis section contains a summary and statistical analysis of the results to each question in your survey.

The Questionnaire section lists all questions in your survey's questionnaire. This is provided as a reference to help you interpret
the Results Analysis.

The Notes sections contains definitions of key terms and tips on how to interpret your results.

Confidence Intervals

Wherever possible, results are presented with an indication of the results accuracy. Usually this is presented in the form of a
confidence interval. It is important when reviewing survey results to make sure that any action you plan is based only on
statistically significant results.

Correlation Analysis

In preparing the results analysis, the report generator has examined all questions in pairs to see if there are any correlations
between answers. Whenever a significant correlation is found, it is noted. This information can be valuable in determining what
demographic or experience characteristics tend to drive key measures such as overall satisfaction.
Results Analysis
Survey name: Survey of Forensic Laboratories and Scene Investigation
Start date: Wednesday, June 13, 2007
End date: Friday, September 14, 2007
Number of respondents: 407

Filter:
Include all respondent's answers.

i) Because this survey is posted in a variety of locations, we ask that you fill and submit only one version. We also ask that you
only complete answers to those questions that pertain to you. If a question does not pertain to the work you performed in
2006, please leave it blank.

1) Part A. Demographics and General Questions

Indicate the type of work you do and assign a percentage of time in that activity (if you perform in multiple areas please
indicate):

Job Title / Percentage of Time

1a) Fire Debris Analyst

10-20% (39) 22.0%

20-30% (22) 12.4%

30-40% (6) 3.4%

40-50% (11) 6.2%

50-60% (6) 3.4%

60-70% (2) 1.1%

70-80% (6) 3.4%

80-90% (8) 4.5%

90-100% (12) 6.8%

N/A (65) 36.7%

Total (177)
 An answer to this question is not required and 230 of 407 respondents chose not to answer.

1b) Explosive Debris Analyst

10-20% (51) 34.7%

20-30% (8) 5.4%

30-40% (3) 2.0%

40-50% (4) 2.7%

50-60% (0) 0.0%

60-70% (0) 0.0%

70-80% (0) 0.0%

80-90% (0) 0.0%

90-100% (2) 1.4%

N/A (79) 53.7%

Total (147)

An answer to this question is not required and 260 of 407 respondents chose not to answer.

1c) Fire Scene Investigation

10-20% (56) 17.3%

20-30% (37) 11.5%

30-40% (19) 5.9%

40-50% (21) 6.5%

50-60% (13) 4.0%

60-70% (14) 4.3%

70-80% (28) 8.7%

80-90% (35) 10.8%

90-100% (69) 21.4%

N/A (31) 9.6%

Total (323)

An answer to this question is not required and 84 of 407 respondents chose not to answer.
1d) Explosives (Post Blast) Investigation

10-20% (112) 56.0%

20-30% (13) 6.5%

30-40% (7) 3.5%

40-50% (2) 1.0%

50-60% (2) 1.0%

60-70% (1) 0.5%

70-80% (0) 0.0%

80-90% (0) 0.0%

90-100% (7) 3.5%

N/A (56) 28.0%

Total (200)

An answer to this question is not required and 207 of 407 respondents chose not to answer.

1e) Supervisor/Administrator for either Laboratory Analyses or Scene Investigations

10-20% (40) 20.3%

20-30% (21) 10.7%

30-40% (11) 5.6%

40-50% (6) 3.0%

50-60% (5) 2.5%

60-70% (4) 2.0%

70-80% (8) 4.1%

80-90% (6) 3.0%

90-100% (27) 13.7%

N/A (69) 35.0%

Total (197)

An answer to this question is not required and 210 of 407 respondents chose not to answer.

1f)
Academic/Teaching
 10-20% (98) 47.3%

20-30% (17) 8.2%

30-40% (10) 4.8%

40-50% (9) 4.3%

50-60% (6) 2.9%

60-70% (3) 1.4%

70-80% (2) 1.0%

80-90% (1) 0.5%

90-100% (3) 1.4%

N/A (58) 28.0%

Total (207)

An answer to this question is not required and 200 of 407 respondents chose not to answer.

2) Indicate the type of organization for which you work (check one):

Private (93) 23.2%

City/Municipal (170) 42.5%

County (70) 17.5%

State/Provincial (52) 13.0%

Federal (15) 3.8%

Total (400)

An answer to this question is not required and 7 of 407 respondents chose not to answer.

3) List the number of all employees (including you) in your laboratory or unit involved in fire
debris or explosives analysis, scene investigation, and/or reporting for each of the following
categories:

Position / Number of Employees

3a) Analyst /Scientist

Probability Density Function

Cumulative Distribution

Average: 2.00

Standard Deviation: 3.81

Minimum: 0.00

Maximum: 30.00

An answer to this question is not required and 257 of 407 respondents chose not to answer.

3b) Lab. Supervisor/Manager

Probability Density Function

 Cumulative Distribution

Average: 0.80

Standard Deviation: 2.30

Minimum: 0.00

Maximum: 19.00

An answer to this question is not required and 285 of 407 respondents chose not to answer.

3c) Scene Investigator/EOD

Probability Density Function

 Cumulative Distribution

Average: 6.62

Standard Deviation: 15.04

Minimum: 0.00

Maximum: 180.00

An answer to this question is not required and 83 of 407 respondents chose not to answer.

3d) Scene/EOD Supervisor

Probability Density Function

 Cumulative Distribution

Average: 2.28

Standard Deviation: 5.27

Minimum: 0.00

Maximum: 56.00

An answer to this question is not required and 204 of 407 respondents chose not to answer.

4) Years of Experience in this field / Number of employees

4a) 0-2

Probability Density Function

 Cumulative Distribution

Average: 2.02

Standard Deviation: 1.49

Minimum: 0.00

Maximum: 8.00

An answer to this question is not required and 262 of 407 respondents chose not to answer.

4b) 2-5

Probability Density Function

 Cumulative Distribution

Average: 3.07

Standard Deviation: 7.50

Minimum: 0.00

Maximum: 85.00

An answer to this question is not required and 247 of 407 respondents chose not to answer.

4c) 5-10

Probability Density Function

 Cumulative Distribution

Average: 3.27

Standard Deviation: 8.42

Minimum: 0.00

Maximum: 90.00

An answer to this question is not required and 211 of 407 respondents chose not to answer.

4d) 10-15

Probability Density Function

 Cumulative Distribution

Average: 3.61

Standard Deviation: 7.99

Minimum: 0.00

Maximum: 90.00

An answer to this question is not required and 238 of 407 respondents chose not to answer.

4e) 20-25

Probability Density Function

 Cumulative Distribution

Average: 2.73

Standard Deviation: 4.24

Minimum: 0.00

Maximum: 25.00

An answer to this question is not required and 286 of 407 respondents chose not to answer.

4f) 25-30

Probability Density Function

 Cumulative Distribution

Average: 2.17

Standard Deviation: 3.43

Minimum: 0.00

Maximum: 26.00

An answer to this question is not required and 335 of 407 respondents chose not to answer.

4g) >30

Probability Density Function

 Cumulative Distribution

Average: 3.20

Standard Deviation: 7.77

Minimum: 0.00

Maximum: 45.00

An answer to this question is not required and 356 of 407 respondents chose not to answer.

5) List the number of all employees (including you) in your laboratory or unit involved in fire
debris or explosives analysis, scene investigation, and/or reporting for each of the following
categories:

Highest Education attained by each employee / Number of Employees:

5a) High School

Probability Density Function

Cumulative Distribution

Average: 5.01

Standard Deviation: 11.72

Minimum: 0.00

Maximum: 140.00

An answer to this question is not required and 216 of 407 respondents chose not to answer.

5b) 2-3 year degree / diploma

 X

10

10

15

2
 4

10

80

1/1

3
 1

12

10

25

1
 1

one

10

2-2

15

3
 1

An answer to this question is not required and 199 of 407 respondents chose not to answer.

5c) 4 year BA or BS or BSc

Probability Density Function

 Cumulative Distribution

Average: 3.09

Standard Deviation: 4.46

Minimum: 0.00

Maximum: 35.00

An answer to this question is not required and 179 of 407 respondents chose not to answer.

5d) Master's degree

Probability Density Function

 Cumulative Distribution

Average: 1.30

Standard Deviation: 1.27

Minimum: 0.00

Maximum: 10.00

An answer to this question is not required and 320 of 407 respondents chose not to answer.

5e) PhD

Probability Density Function

 Cumulative Distribution

Average: 1.10

Standard Deviation: 1.94

Minimum: 0.00

Maximum: 10.00

An answer to this question is not required and 377 of 407 respondents chose not to answer.

6) Indicate the number of times you testified in court in 2006

1-5 (256) 80.0%

6-10 (35) 10.9%

11-15 (13) 4.1%

16-20 (4) 1.2%

21-30 (5) 1.6%

 31-40 (3) 0.9%

41-50 (1) 0.3%

>50 (3) 0.9%

Total (320)

An answer to this question is not required and 87 of 407 respondents chose not to answer.

ii) Part B. Professional Development (Check an answer only on those questions which apply to you)

7) Which, if any, of the following professional development activities will your laboratory or agency pay (in part or in full) for
employees to attend (check all that apply):

local/state/regional professional
(312) 80.0%
association meeting

conference, seminar, or symposium

(339) 86.9%
held within the state/province

conference, seminar, or symposium

(244) 62.6%
held outside the state/province

conference, seminar, or symposium

(48) 12.3%
held outside home country

seminar or course held off-site (273) 70.0%

seminar or course held on-site (234) 60.0%

classes held a local university (203) 52.1%

on-line classes from an accredited

(164) 42.1%
university

employer does not offer to pay for

courses, seminars, or for (24) 6.2%
conference/symposium attendance

Total (390)

An answer to this question is not required and 17 of 407 respondents chose not to answer.

8) On average, in 2006 what level of funding support did your agency provide for your continuing
education/training/professional development? (This includes tuition, registration, travel, lodging, meals, and incidentals.)
 No funding provided (33) 8.8%

$1 to $500 (63) 16.8%

$501 to $1000 (69) 18.4%

$1001 to $1500 (38) 10.1%

$1501 to $2000 (49) 13.1%

$2001 to $2500 (33) 8.8%

$2501 to $3000 (27) 7.2%

$3001 to $4000 (20) 5.3%

$4001 to $5000 (11) 2.9%

>$5000 (32) 8.5%

Total (375)

An answer to this question is not required and 32 of 407 respondents chose not to answer.

9) Rate your level of interest (along the following scale) in attending college level courses if: (1-7 where: 1 = Never, 4 = Likely,
7 = Absolutely)

9a) You had to pay 100% of the costs

1 (121) 33.5%

2 (76) 21.1%

3 (39) 10.8%

4 (59) 16.3%

5 (23) 6.4%

6 (7) 1.9%

7 (36) 10.0%

Total (361)

An answer to this question is not required and 46 of 407 respondents chose not to answer.

9b) You had to pay 75% of the costs

 1 (92) 26.7%

2 (61) 17.7%

3 (58) 16.9%

4 (68) 19.8%

5 (25) 7.3%

6 (15) 4.4%

7 (25) 7.3%

Total (344)

An answer to this question is not required and 63 of 407 respondents chose not to answer.

9c) You had to pay 50% of the costs

1 (68) 19.4%

2 (29) 8.3%

3 (46) 13.1%

4 (96) 27.4%

5 (56) 16.0%

6 (25) 7.1%

7 (31) 8.8%

Total (351)

An answer to this question is not required and 56 of 407 respondents chose not to answer.

9d) You had to pay 25% of the costs

1 (45) 12.9%

2 (11) 3.2%

3 (16) 4.6%

4 (63) 18.1%

5 (63) 18.1%

6 (79) 22.7%

7 (71) 20.4%

Total (348)
 An answer to this question is not required and 59 of 407 respondents chose not to answer.

9e) You had to pay 0% of the costs

1 (21) 5.9%

2 (1) 0.3%

3 (7) 2.0%

4 (11) 3.1%

5 (12) 3.4%

6 (22) 6.2%

7 (282) 79.2%

Total (356)

An answer to this question is not required and 51 of 407 respondents chose not to answer.

10) Rate how interested you would be in taking each of the following types of continuing education courses: (1-7 where: 1 =
Never, 4 = Likely, 7 = Absolutely)

10a) EOD Range Time (Training with EOD personnel)

Probability Density Function

Cumulative Distribution
 Average: 4.86

Standard Deviation: 2.33

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 52 of 407 respondents chose not to answer.

10b) Fire Scene Evidence Collection, Preservation, and Packaging

Probability Density Function

Cumulative Distribution
 Average: 5.70

Standard Deviation: 1.78

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 30 of 407 respondents chose not to answer.

10c) Explosives Scene Collection, Preservation, and Packaging

Probability Density Function

Cumulative Distribution
 Average: 5.49

Standard Deviation: 1.89

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 36 of 407 respondents chose not to answer.

10d) Fire Dynamics (including Chemistry and Physics)

Probability Density Function

Cumulative Distribution
 Average: 5.27

Standard Deviation: 1.79

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 34 of 407 respondents chose not to answer.

10e) Petroleum Refining Processes

Probability Density Function

Cumulative Distribution
 Average: 3.39

Standard Deviation: 2.05

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 54 of 407 respondents chose not to answer.

10f) Ignitable Liquid Classification System

Probability Density Function

Cumulative Distribution
 Average: 4.18

Standard Deviation: 1.98

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 50 of 407 respondents chose not to answer.

10g) Electrical circuitry and fire

Probability Density Function

Cumulative Distribution
 Average: 5.47

Standard Deviation: 1.83

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 30 of 407 respondents chose not to answer.

10h) Testifying as an Expert Witness

Probability Density Function

Cumulative Distribution
 Average: 5.48

Standard Deviation: 1.80

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 33 of 407 respondents chose not to answer.

10i) Explosives Manufacturing Processes

Probability Density Function

Cumulative Distribution
 Average: 4.73

Standard Deviation: 2.03

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 46 of 407 respondents chose not to answer.

10j) IED recognition and construction

Probability Density Function

Cumulative Distribution
 Average: 5.02

Standard Deviation: 2.08

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 52 of 407 respondents chose not to answer.

10k) Computer Fire Modeling

Probability Density Function

Cumulative Distribution
 Average: 4.52

Standard Deviation: 2.09

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 46 of 407 respondents chose not to answer.

10l) Gas Chromatography

Probability Density Function

Cumulative Distribution
 Average: 3.65

Standard Deviation: 1.95

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 55 of 407 respondents chose not to answer.

10m) Mass Spectral Interpretation

Probability Density Function

Cumulative Distribution
 Average: 3.52

Standard Deviation: 1.98

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 57 of 407 respondents chose not to answer.

10n) Raman Spectrosopy for Explosives

Probability Density Function

Cumulative Distribution
 Average: 3.34

Standard Deviation: 2.04

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 57 of 407 respondents chose not to answer.

10o) X-Ray Analysis Techniques (Diffraction, Fluorescence, Energy Dispersive)

Probability Density Function

Cumulative Distribution
 Average: 4.08

Standard Deviation: 2.16

Minimum: 1.00

Maximum: 8.00

An answer to this question is not required and 54 of 407 respondents chose not to answer.

10p) Ion Chromatography

Probability Density Function

Cumulative Distribution
 Average: 3.12

Standard Deviation: 1.93

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 63 of 407 respondents chose not to answer.

10q) Capillary Electrophoresis

Probability Density Function

Cumulative Distribution
 Average: 2.91

Standard Deviation: 1.83

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 66 of 407 respondents chose not to answer.

10r) Fourier Transform Infrared Spectroscopy

Probability Density Function

Cumulative Distribution
 Average: 3.01

Standard Deviation: 1.95

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 67 of 407 respondents chose not to answer.

10s) Advanced Organic Chemistry for Fire Debris Analysis

Probability Density Function

Cumulative Distribution
 Average: 3.77

Standard Deviation: 2.11

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 58 of 407 respondents chose not to answer.

10t) Advanced Topics in the Chemistry of Organic Explosives

Probability Density Function

Cumulative Distribution
 Average: 3.70

Standard Deviation: 2.19

Minimum: 1.00

Maximum: 11.00

An answer to this question is not required and 58 of 407 respondents chose not to answer.

10u) Advanced Topics in the Chemistry of Inorganic Explosives

Probability Density Function

Cumulative Distribution
 Average: 3.78

Standard Deviation: 2.19

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 61 of 407 respondents chose not to answer.

10v) Forensic Fire Scene Examination

Probability Density Function

Cumulative Distribution
 Average: 5.70

Standard Deviation: 1.79

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 34 of 407 respondents chose not to answer.

10w) Forensic Explosive Scene Examination

Probability Density Function

Cumulative Distribution
 Average: 5.49

Standard Deviation: 1.87

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 49 of 407 respondents chose not to answer.

10x) Communication and Cooperation between Investigators and Analysts in Fire Investigations

Probability Density Function

Cumulative Distribution
 Average: 5.30

Standard Deviation: 1.78

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 41 of 407 respondents chose not to answer.

10y) Communication and Cooperation between Investigators and Analysts in Explosion Investigation

Probability Density Function

Cumulative Distribution
 Average: 5.44

Standard Deviation: 3.79

Minimum: 1.00

Maximum: 61.00

An answer to this question is not required and 48 of 407 respondents chose not to answer.

11) List a maximum of 3 other training / classes that you feel would be helpful to you in order to do your job better?

Software for data processing

Macro Writing to customize software for specific needs

Fire Debris Analysis by GC/MS

Fire Scene Collection
Matrix/Ignitable Liquid Classification Identification
Must have Testimony (did not testify in 2006)

Hands on scene reconstruction and documentation

On scene processing of fragile evidence for preservation and collection
On scene homicide/death investigation

Pyrolyzates and interfering compunds in fire debris analysis.

QA issues

Post Blast Investigations

Counter Terrorism/IED RSP

Forensic analysis of intact high explosives, Forensic analysis of explosive residues

Airport X-Ray Interpretation, Underwater Explosive Recognition and Disruption, Underwater Explosive Scene
Investigation and Photography

A hands on Fire Investigation Class

Digital photography techniques for the technophobe

Courtroom Training
ASCLD Certification
Evidence Handling

large and small appliance fire investigation

advanced vehicle fire investigation
 water craft investigations

Advanced Electronics
Suicide/Hostage Bomber Investigation

Previous listing covers it well enough

Advanced GC/MS class

Pyrolysis interpretation class
Advanced Organic Chemistry for Fire Debris Analysis

Chemistry of Chemical Spot tests

Chemical Analysis of Clandestine Drug Labs

lc mass spec
management
ion chromatography

Examination of low order explosives by PLM

any fire debris analysis training with data interpretation

If not covered above, Extraction techniques for explosive residue samples

Fire Scene Digital Photography

Digital Photograph Printing

Financial Analysis

Report writing

National level CBRN Training

Wet chemical analysis of explosives

Report Writing
Complex Scene Management
Data/Document Management

Fire Pattern analysis

Vehicle fire investigation

fire death investigation, burning rates of human bodies, effects of ignitable liquids on the body

NFPA Life Safety Code

NFPA Smoke Alarm Code
Hazards of welding operations

Insurance aspects of fire investigation

Effects of fire supression on fire scene
demolition of fire scene

NFA and ATF classes as well as Interveiwing and interrogation classes

Death scene investigation / post mortem evidence collection

ELECTRICAL WIRING AND/OR APPLIANCE FIRES

LEGALITIES OF FIRE SCENE INVEST./ COURT PROCEDURES

CV writting, DIgital photography, TAsk force communications

Gases - appliances and failure, Crime scene investigation as fire/crime scenes often are one in the same. The
necessity of scene and evidence integrity integrity - many cases are void due to lack of scene and evidence
integrity being maintained or retained.

1. fuel cell technology

2. IED development
3. Modern technology concerning electronics and manufacturing if IC's and plastics.

People Management
Budget
Communication Skills

Hazardous materials sampling and analysis

Statistical analysis of fire incidents

 Classes which provide information pertaining to the insurance industry and the resources they have that can be
used.

Interviewing
Interogation
Evidence collection

Photography, Reasearch of data, Civil and Criminal Law

Live fire investigaton trainings

Site review/site case studies

Digital imaging classes

Cooperation between Investigators and Prosecutors.

advanced burn pattern recognition

Examinaion of appliances involved with fire

Vehicle fire investigstions
Interview interrogation techniques

auto fire investigations

heavy equipment (construction, logging, farm) fire inves.
RV fire inves

All Classes through ATF and National Fire Academy

Auto fire investigation

vehicle
computer forensic

Report writing

Private Public working to gether this would be more local due to various imunity laws

More advance electrical classes

Interrogation

report writing

interviewing
interrogation
fatals

Interview Techniques

Accelerant Detection K-9 Utilization

Fire Fatality Investigation

Preparing for CFI Examination

interview/ interogation
photography/ scketching
case managment

Evidence collection and chain of evidence

Fire scene cross contamination
Fire scene reconstruction

Kinesics
Electrical Issues in fire scene examination
Kinesics

Evidence Collection and preservation, Forensic Photography

Serial Arson Analysis-Planning

Law Enforcement Operations/Fire-Surviellance

Crime scene photography

Total Station for crime scenes
CAD for crime scenes

examination of gas appliances

electrical examination
 interviewing and interrogation techniques
proper techniques on crime scenes

general crime scene investigations

latent fingerprints
fire scene photography

Learning to be Objective
Report writing
Evidence Collection and Protection

Homemade explosives

Vehicle and heavy equipment fire investigation techniques

On scene vehicle fires

On scene building fires

live demonstrations of burns and explosives.

Interviewing Tech.
Large Scale Investigations
wildland

None

Interviewing
Financial Analysis
Advanced evidecne handling techniques

identification of fire damaged components/equipment. Vehicle fire investigation.

Search warrant prep. for post blast investigation.

finger print preservation and lifting prints

Interviewing Techniques

Interview / interrogation techniques

Forensic Photography
The role of a fire investigator, engineer, & scientist in fire & explosion investigations

The scientific method

NFPA 921
Avoiding bias

Report Writing
Photography of evidence
Finger Printing

investigation 2 A and 2B

fire pattern recognition, digital photography,

inter-agency ops
TDY assignments as compared to FBI SABT's out of country assignments

Commercial Explosives
Post Blast/Residue Analysis

Arc tracking/mapping

Case Law Studies

Interviewing
Fire Death Investigations
 Photography
X-Ray photography
HAZWOPER

Car fire origin and cause

Transponder/Vats/Passlock operation
eLECTRONIC "SNIFFING" DEVICES

Car fires, car bombs

Juvenile Fire Setters, Fraud Case Managment, Interview Tech.

Digital Photes
Case Preperation
Report Writting

photography, sketching classes and programs

Standards in Reports.
Case studies,
Safety on and around the fire scene during an investigation.

1.History of Explosives and composition.

2.Home Made Explosives (with Range time)
3.Improvised Explosive recognition and manufacturing

n/a

Bulding an arson case

Investigating Financial Motives
Health Concerns due to long term exposures

1. Digital Photography
2. ICS for Major Fire and Explosives Scenes.
3. How to read techinical reports.

Reasearch areas
Marine Fire Investigations
Auto Fires

Advanced electronics course.

Court Room Prep

Report Prep
Scene Documentation

Marine fire and explosion investigation

Advanced arson investigation;

Electronics circuitry,

VEHICLE FIRES,FINDING CLUES AFTER FLASHOVER,PSY CLASS OF CRIMINAL MIND TO COVER CRIME WITH FIRE.

Legal liability in the fire service

Spoliation

Advanced Render Safe Procedures

Use and training in ECM techniques
Advanced Electronics training with DTMF, collapsing circuits and observation at sites like TEDAC where real world
devices, triggers and switches can be examined and evaluated.

Electronics class, Current trends in IED's, Delivery methods for LVBIED's

Interviewing techniques.

Buget and Grant writing

Fire-Explosion Dynamics
Fire-Explosion Modeling
Scene documentation for modeling

Fire modeling,interview interrogation, frire debris analysis

Interview/Interrogation Classes by John Reid

na
 Interview / interogation
Report writing

Vessel Fires
Large Scale, Forestry/Wildland Fire Investigations
Large Scale Building Construction Techniques

Serial Arsonists
Fraud Arson
Chemical Fires

Residential Fire Investigation programs

Improved communication between attorneys, insurance companies, and investigators

Legal Aspects of Fire Scene Examination

Cooperation Between Police and Fire Investigators

advanced on hands explosives course

Coordination of / Participation in Multi-Agency Investigations; The OSHA perspective on Fire Investigator Safety;
Understanding the Legal System for the Non-Sworn Fire Investigator

Interviewing and Intoerrogation classes e.g. Reid, W-Z Method, Kinesics etc...
Investigating/Responding to Clan-Lab Fires
Fire Fatality/Injury Investigations

Photography
Drafting/Drawing
Interveiwing Techniques

Vehicle Fire Investigation, Report Writing, Appliance Fires

Interview and Interragation

Computer Information Systems
Criminal Back ground investigation
Agency Overviews(Design and makeup of other agencies for basic information and improved communication.)

testifing
report writting
diagram

1. Interview/Interrogation techniques
2. Courtroom testimony training
3. Digital photography training

Mechanical systems and fires.

Fires in Gas Appliances

Big bomb disruption tools, standards.

Training on standard eq.

survellence and interview techniques

Use of digital photography

Interviewing
Personal protection at fire scene

report wrting

mathematical calculations for heat flux, etc.

legal update re: expert witness exclusion
report writing for technical experts

Interviewing techniques
Available investigation equipment and uses
Fire patterns

Scene Preservation
Scene Reconstruction
Interviewing

Management of large loss scene investigations

Establishing protocols for muti-party bench exams

Financial alnalyisi of Fire Suspects

 documentation

Legal guidelines, warrants, evidence issues, roles of the municipality in investigations.

IED electrical analysis

Field exercise with improvises explosives (ie TATP)

Fire scene reconstruction

Vehicle Fires

Electronics/ basic Circuitry

Explosive Breaching, Advanced IED electronics, Advanced X-ray

Robot Operations, Rigging Operations, Associate Degree Program in Explosives Disposal Technology

Hands on Arson Investigation classes

Hands on training.

Vehicle fires
Appliance fires

Investigative writing techniques.

80 hour arson investigation course taught at local level for l.e. investigators;

Legal courtroom analysis and testifying

Military ordnance recognition, explosive range development/ hazmat osha concerns

Advanced technologoy in fire scene examination

Report writing
Training budget and analysis

Advanced Vehicle Fire Investigations

Insurance Fraud Investigations

Spontaneous combustion fire analysis, Building construction as it relates to the fire investigator,

Propane explosions and defeat\

standoff distances for bomb techs

Legal Updates, Surveillance, Search and Seizure

WItness interview
Electrical shorting and arcing

Refresher courses in all above on an on-going basis

Advanced scene investigation

Electrical Investigation
Case management

IED, EOD, and Courtroom testamony

Explosives crime scene management

x-ray interpretation

Interviewing and Interrogation

Report writing
Multi-juristictional wildland fire investigation case building

Juvenile firesetting, Fire Scene Reconstruction, Hands on Electrical Fire Investigation

maritime fires
equivocal death investigations
structures/construction

n/a

Vehicular systems functions for fire investigators.

Boating systems functions for fire investigators.
Ignition chemistry: Spontaneous combustion

Interview and Interrogation

Fatal fire scene examination

Physical chemistry
 new automobile fire causes/possible heat sources/possible danger zones
new building material burn and heat related failure compared to older more conventional building components
health hazards/related cancer studies/ studies on safe levels of atmosphere on post fire scenes

Evidence Collection

Interviewing and Report writing

Court room testimony, trial preparation, interrogation

Forensic Analysis of Explosive Residues

An answer to this question is not required and 227 of 407 respondents chose not to answer.

12) Rank how important would each of the following resources be to you? (1-7 where: 1 = Not at all, 7 = Very Important)

12a) Comprehensive Listing of people working in the field (private and government)

Probability Density Function

Cumulative Distribution
 Average: 5.20

Standard Deviation: 1.87

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 46 of 407 respondents chose not to answer.

12b) Creation of a secure Internet link for E-mail and information exchange between professionals in the field of explosives and
fire debris analysis

Probability Density Function

Cumulative Distribution
 Average: 5.70

Standard Deviation: 1.71

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 48 of 407 respondents chose not to answer.

12c) Establishment of a collection of sample laboratory reports

Probability Density Function

Cumulative Distribution
 Average: 4.95

Standard Deviation: 4.32

Minimum: 1.00

Maximum: 77.00

An answer to this question is not required and 60 of 407 respondents chose not to answer.

12d) Creation of a glossary of analytical, explosives, and fire debris-related technology

Probability Density Function

Cumulative Distribution
 Average: 5.42

Standard Deviation: 1.69

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 53 of 407 respondents chose not to answer.

12e) Creation of information templates for evidence submission

Probability Density Function

Cumulative Distribution
 Average: 5.08

Standard Deviation: 1.87

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 54 of 407 respondents chose not to answer.

12f) Establishment of a collection of methods and protocols for analytical techniques

Probability Density Function

Cumulative Distribution
 Average: 5.28

Standard Deviation: 2.82

Minimum: 1.00

Maximum: 45.00

An answer to this question is not required and 59 of 407 respondents chose not to answer.

12g) Establishment of databases of reference materials for analytical techniques

Probability Density Function

Cumulative Distribution
 Average: 5.27

Standard Deviation: 1.88

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 64 of 407 respondents chose not to answer.

12h) Creation of a national database for tracking bombing matters

Probability Density Function

Cumulative Distribution
 Average: 5.16

Standard Deviation: 2.02

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 62 of 407 respondents chose not to answer.

12i) Creation of a national database for tracking arson matters

Probability Density Function

Cumulative Distribution
 Average: 5.73

Standard Deviation: 1.76

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 57 of 407 respondents chose not to answer.

12j) Establishment of a national resource database (for lab equipment, expertise, etc.)

Probability Density Function

Cumulative Distribution
 Average: 4.99

Standard Deviation: 1.96

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 64 of 407 respondents chose not to answer.

12k) Establishment of a national explosives formulation database

Probability Density Function

Cumulative Distribution
 Average: 4.82

Standard Deviation: 2.04

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 66 of 407 respondents chose not to answer.

12l) Creation of a bulletin board for communication between explosives analysts

Probability Density Function

Cumulative Distribution
 Average: 4.78

Standard Deviation: 2.06

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 71 of 407 respondents chose not to answer.

12m) Creation of a bulletin board for communication between fire debris

Probability Density Function

Cumulative Distribution
 Average: 5.26

Standard Deviation: 1.88

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 69 of 407 respondents chose not to answer.

12n) Creation of an library of manufacturers' literature

Probability Density Function

Cumulative Distribution
 Average: 5.55

Standard Deviation: 1.77

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 60 of 407 respondents chose not to answer.

12o) Database of explosives analyst training manuals and materials

Probability Density Function

Cumulative Distribution
 Average: 5.19

Standard Deviation: 1.96

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 65 of 407 respondents chose not to answer.

12p) Information center for inter-agency training exercises

Probability Density Function

Cumulative Distribution
 Average: 5.65

Standard Deviation: 1.68

Minimum: 1.00

Maximum: 10.00

An answer to this question is not required and 60 of 407 respondents chose not to answer.

13) Are you given time and resources to perform research in your field(s)?

Yes (203) 54.1%

No (172) 45.9%

Total (375)

An answer to this question is not required and 32 of 407 respondents chose not to answer.

14) If so, approximately how many hours in 2006?

14a) Fire debris analysis

Probability Density Function

 Cumulative Distribution

Average: 57.12

Standard Deviation: 128.15

Minimum: 0.00

Maximum: 1,200.00

An answer to this question is not required and 281 of 407 respondents chose not to answer.

14b) Explosives Analysis

120

20

0
 0

20

10

30

40

25

200

12

NA

12

25

10

20

20

50

10

100

50

20

20

10

40

40

10

10

0
 3

25

400

35

30

20

10

40

100

24

300

40

96

100

40

1650

80

10

100

50

10

n/a

700

200

80

na

144

0
 20

40

25

30

50

80

10

An answer to this question is not required and 294 of 407 respondents chose not to answer.

14c) Fire Scenes

100

60

40

25

40

40

75

40

40
 0

25

100

100

NA

80

100

25

48

200

50

1000

100

6240

50

100

25

120

20

1000

50

100

40

250

50

80

75

10

10

200

100

300

24

100

80

40

30

500

60

1000
 20

80

10

12

20

40

100

40

20

50

10

80

40

200

60

50

1000

24

100

80

100

250

20

25

1000

25

30

60

150

40

900

15

1100

100

80

40

1800

96

70

120

20
 60

55

300

50

60

75

500

50

30

48

40

80

40

20

200

100

56

20

20

40

>100

>80

100

150

n/a

200

25

24

50

20

40

40

40

100

na

80

131

10

100

0
 0

100

40

40

10

40

100

50

80

150

200

20

An answer to this question is not required and 233 of 407 respondents chose not to answer.

14d) Explosive Scenes

Probability Density Function

Cumulative Distribution
 Average: 121.92

Standard Deviation: 614.91

Minimum: 0.00

Maximum: 6,240.00

An answer to this question is not required and 288 of 407 respondents chose not to answer.

15) Rate each of the following statements as they apply to your laboratory or to you using the scale given below: (1-7 where: 1
= Not at all, 7 = Very)

15a) How sufficient are the explosives and fire debris publications provided by your laboratory?

Probability Density Function

Cumulative Distribution
 Average: 3.60

Standard Deviation: 2.16

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 229 of 407 respondents chose not to answer.

15b) How interested would your laboratory be in receiving a library of ignitable liquid standards on a regular basis?

Probability Density Function

Cumulative Distribution
 Average: 4.98

Standard Deviation: 2.27

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 233 of 407 respondents chose not to answer.

15c) How interested would your laboratory be in receiving a library of pyrolysis standards on a regular basis?

Probability Density Function

Cumulative Distribution
 Average: 4.75

Standard Deviation: 2.26

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 233 of 407 respondents chose not to answer.

15d) How important do you feel it would be to have national standards for report writing?

Probability Density Function

Cumulative Distribution
 Average: 4.90

Standard Deviation: 2.10

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 197 of 407 respondents chose not to answer.

15e) How important would it be to have a specific protocol for wording of both positive and negative samples?

Probability Density Function

Cumulative Distribution
 Average: 4.91

Standard Deviation: 2.13

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 210 of 407 respondents chose not to answer.

15f) How important would it be to have a national database for chromatographic data for ignitable liquids?

Probability Density Function

Cumulative Distribution
 Average: 5.28

Standard Deviation: 2.00

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 213 of 407 respondents chose not to answer.

15g) How important would it be to have a national source for ignitable liquid standards?

Probability Density Function

Cumulative Distribution
 Average: 5.52

Standard Deviation: 1.84

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 209 of 407 respondents chose not to answer.

15h) How interested are you in participating in the fire and explosives debris analysis technical working group?

Probability Density Function

Cumulative Distribution
 Average: 4.90

Standard Deviation: 2.16

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 203 of 407 respondents chose not to answer.

iii) Part C. Fire Debris Analysis Case Work (Check an answer only on those questions which apply to you)

16) Indicate the total number of fire debris samples analyzed/processed in 2006 by all the analysts within your agency (check
one):

1-50 (87) 60.4%

51-100 (16) 11.1%

101-250 (13) 9.0%

251-500 (8) 5.6%

501-750 (6) 4.2%

751-1000 (4) 2.8%

1001-2000 (3) 2.1%

>2000 (7) 4.9%

Total (144)

An answer to this question is not required and 263 of 407 respondents chose not to answer.
16a) Indicate the total number of ignitable liquid samples analyzed/processed in 2006 by all the analysts within your agency
(check one):

1-50 (94) 70.1%

51-100 (11) 8.2%

101-250 (12) 9.0%

251-500 (9) 6.7%

501-750 (3) 2.2%

751-1000 (0) 0.0%

1001-2000 (1) 0.7%

>2000 (4) 3.0%

Total (134)

An answer to this question is not required and 273 of 407 respondents chose not to answer.

iv) Part D. Fire Debris Analytical Methods (Check an answer only on those questions which apply to you)

17) Extraction method routinely used for fire debris analysis (check one):

activated charcoal (passive headspace

sampling - includes strips, tea bags, (64) 76.2%
wires, and ribbons)

activated charcoal (dynamic

(17) 20.2%
headspace sampling)

TENAX (passive or dynamic headspace

(3) 3.6%
sampling)

SPME (please indicate the phase

(1) 1.2%
used):

Other absorbent: (7) 8.3%

Total (84)

An answer to this question is not required and 323 of 407 respondents chose not to answer.
17a) If you checked "SPME" (Please indicate the phase used here):

none

n/a

An answer to this question is not required and 405 of 407 respondents chose not to answer.

17b) If you checked "Other absorbent" above, (please specify which one used here):

N/A

solid or bulk sample

gauze pads

n/a

non-bleached flour

clay chips/ sterile pads

An answer to this question is not required and 401 of 407 respondents chose not to answer.

18) Indicate which eluting solvent used for extracts from fire debris:

no eluting solvent used (e.g. thermal

(11) 16.4%
desorption or SPME)

carbon disulfide (CS2) (38) 56.7%

dichloromethane (CH2Cl2) (5) 7.5%

diethyl ether (6) 9.0%

pentane (11) 16.4%

Other (specify): (4) 6.0%

Total (67)

An answer to this question is not required and 340 of 407 respondents chose not to answer.

18a) If you checked "Other" above (please specify which one was used here):
 CS2/Pentane 1:1

none

N/A

n/a

unknown

not preformed

An answer to this question is not required and 401 of 407 respondents chose not to answer.

19) Internal standard routinely added to fire debris?

Yes (11) 15.1%

No (62) 84.9%

Total (73)

An answer to this question is not required and 334 of 407 respondents chose not to answer.

19a) If "Yes", (please specify which compound(s) used):

3 pphenyl toluene used in lab can controls for recovery

3PT

trichloroethylene

but BHT is in ether

3-phenyltoluene

3 phenyl toluene

3-phenyltoluene

none

3-phenyltoluene

N/A

kflex

An answer to this question is not required and 396 of 407 respondents chose not to answer.

20)
Internal standard routinely added to eluting solvent (if solvent used to elute absorbent)?
 Yes (10) 15.2%

No (56) 84.8%

Total (66)

An answer to this question is not required and 341 of 407 respondents chose not to answer.

20a) If "Yes", (please specify which compound(s) used):

Trichloroethane

PCE

diphenylmethane

Alane mix

thiophene

none

perchloroethylene

N/A

alcohols, gas, kerosene, diesel fuel

An answer to this question is not required and 398 of 407 respondents chose not to answer.

21) For Instrumentation used in fire debris and/or ignitable liquid analysis, how often do you use each of the following analytical
techniques? (1-7 where: 1 = Never, 2 = Rare, 5 = Often, 7 = Exclusive)

21a) GC-FID

Probability Density Function

 Cumulative Distribution

Average: 2.29

Standard Deviation: 1.80

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 362 of 407 respondents chose not to answer.

21b) GC-MS

Probability Density Function

 Cumulative Distribution

Average: 6.08

Standard Deviation: 1.95

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 347 of 407 respondents chose not to answer.

21c) GC-MS-MS

Probability Density Function

 Cumulative Distribution

Average: 1.32

Standard Deviation: 1.27

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 366 of 407 respondents chose not to answer.

21d) FTIR

Probability Density Function

 Cumulative Distribution

Average: 1.51

Standard Deviation: 0.99

Minimum: 0.00

Maximum: 6.00

An answer to this question is not required and 362 of 407 respondents chose not to answer.

21e) GC-FTIR

Probability Density Function

 Cumulative Distribution

Average: 1.18

Standard Deviation: 0.87

Minimum: 0.00

Maximum: 6.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

21f) other: (specify)

Probability Density Function

 Cumulative Distribution

Average: 2.50

Standard Deviation: 2.28

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 393 of 407 respondents chose not to answer.

21g) If you checked "Other", (please specify which technique(s) used):

SEM/EDS

Headspace analyzer

sem/eds

none

N/A
 outsource

FLASH POINT

fed lab

n/a

XRF, SEM-EDS, Py GC/MS

An answer to this question is not required and 396 of 407 respondents chose not to answer.

22) Sample introduction to GC

22a) (check one):

split solvent injection (34) 69.4%

splitless solvent injection (7) 14.3%

thermal desorption (7) 14.3%

SPME (please indicate the phase

(0) 0.0%
used):

Other: (specify) (1) 2.0%

Total (49)

An answer to this question is not required and 358 of 407 respondents chose not to answer.

22b) If you checked "SPME" above, (please specify phase used):

n/a

An answer to this question is not required and 406 of 407 respondents chose not to answer.

22c) If you checked "Other" above, (please specify which was used):

splitless 5973, split VArian 2000

 headspace

none

N/A

An answer to this question is not required and 403 of 407 respondents chose not to answer.

23) Type of column phase routinely used for GC separation (check all that apply):

100% polydimethylsiloxane (e.g. DB-

1, DB-1ms, HPMS-1, OV-1, Rtx-1, DB- (30) 58.8%
PETRO, etc.)

(5% phenyl)-methylpolysiloxane (e.g.

DB-5, DB-5ms, HPMS-5, OV-5, Rtx-5, (21) 41.2%
etc.)

(14%-Cyanopropyl-phenyl)-
methylpolysiloxane (e.g. DB-1701, (0) 0.0%
SPB-1701, Rtx-1701, etc.)

polyethylene glycol (e.g. DB-WAX,

Carbowax, HP-20M, Supelcowax 10, (1) 2.0%
HP-Innowax, etc.)

other: (specify) (1) 2.0%

Total (51)

An answer to this question is not required and 356 of 407 respondents chose not to answer.

23a) If you checked "Other" above, (please specify column phase used):

none

N/A

n/a

An answer to this question is not required and 404 of 407 respondents chose not to answer.

24) For fire debris analyses, how often do you use the following QA/QC tests? (1-7 where: 1 = Never, 2 = Rare, 5 = Often, 7 =
Exclusive)
24a) ASTM 1387 test mix or similar mixture

Probability Density Function

Cumulative Distribution

Average: 5.09

Standard Deviation: 2.41

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 353 of 407 respondents chose not to answer.

24b) Internal Standards (e.g., 3-phenyltoluene)

Probability Density Function

 Cumulative Distribution

Average: 2.90

Standard Deviation: 2.57

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 358 of 407 respondents chose not to answer.

24c) Solvent Blanks

Probability Density Function

 Cumulative Distribution

Average: 5.68

Standard Deviation: 2.12

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 351 of 407 respondents chose not to answer.

24d) Apparatus Blanks (e.g., strips, glassware)

Probability Density Function

 Cumulative Distribution

Average: 5.16

Standard Deviation: 2.15

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 351 of 407 respondents chose not to answer.

24e) Recovery Checks (e.g., simulated case extractions

Probability Density Function

 Cumulative Distribution

Average: 3.19

Standard Deviation: 2.31

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 355 of 407 respondents chose not to answer.

24f) Peer Review

Probability Density Function

 Cumulative Distribution

Average: 5.72

Standard Deviation: 2.09

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 350 of 407 respondents chose not to answer.

24g) Other: (specify)

Probability Density Function

 Cumulative Distribution

Average: 5.50

Standard Deviation: 2.46

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 397 of 407 respondents chose not to answer.

24h) If you checked "Other" above, (please specify QA/QC tests used):

NFSTC Validation Kit performed also each batch a blank strip can, an IS recovery can, a gasoline kerosene diesel
recovery can and a 50% evaporated can are run We also work with canine for testing of dog and our imethods

proficiency testing also running known standards on our instruments

proficency testing

known IL standards
 n/a

GC-FID and GC/MS on all fire debris samples

Run ASTM1387 monthly, gasoline and method blank with each run, and solvent blank between each sample

SAM mixture

Daily Gasoline Standard

An answer to this question is not required and 398 of 407 respondents chose not to answer.

25) If you adhere to the following ASTM standards and guides, please indicate how closely you follow them? (1-7 where: 1 =
Never, 2 = Rare, 5 = Often, 7 = Exclusive)

25a) ASTM-E 1387-01 (Standard Test Method for Ignitable Liquid Residues in Extracts from Fire Debris Samples by Gas
Chromatography)

Probability Density Function

Cumulative Distribution
 Average: 4.00

Standard Deviation: 2.31

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

25b) ASTM-E 1618-06 (Standard Test Method for Ignitable Liquid Extracts by Gas Chromatography Mass Spectrometry)

Probability Density Function

Cumulative Distribution
 Average: 5.69

Standard Deviation: 1.61

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 358 of 407 respondents chose not to answer.

25c) ASTM-E 1385-00 (Standard Practice for Separation and Concentration of Ignitable Liquid Residues from Fire Debris Samples
by Steam Distillation)

Probability Density Function

Cumulative Distribution
 Average: 2.03

Standard Deviation: 2.01

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 370 of 407 respondents chose not to answer.

25d) ASTM-E 1412-00(2005) (Standard Practice for Separation and Concentration of Ignitable Liquid Residues from Fire Debris
Samples by Passive Headspace Concentration)

Probability Density Function

Cumulative Distribution
 Average: 5.00

Standard Deviation: 2.07

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 364 of 407 respondents chose not to answer.

25e) ASTM-E 1413-06 (Standard Practice for Separation and Concentration of Liquid Residues from Fire Debris Samples by
Dynamic Headspace Concentration)

Probability Density Function

Cumulative Distribution
 Average: 2.08

Standard Deviation: 1.90

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 371 of 407 respondents chose not to answer.

25f) ASTM-E 1388-05 (Standard Practice for Sampling of Vapors from Fire Debris Samples)

Probability Density Function

Cumulative Distribution
 Average: 3.33

Standard Deviation: 2.25

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

25g) ASTM-E 1386-00(2005) (Standard Practice for Separation and Concentration of Ignitable Liquid Residues from Fire Debris
Samples by Solvent Extraction)

Probability Density Function

Cumulative Distribution
 Average: 4.12

Standard Deviation: 2.30

Minimum: 1.00

Maximum: 11.00

An answer to this question is not required and 365 of 407 respondents chose not to answer.

25h) ASTM-E 1492-05 (Standard Practice for Receiving, Documenting, Storing and Retrieving Evidence in a Forensic Science
Laboratory)

Probability Density Function

Cumulative Distribution
 Average: 5.03

Standard Deviation: 1.85

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

25i) ASTM-E 1459-92(2005) (Physical Evidence Labeling and Related Documentation)

Probability Density Function

Cumulative Distribution
 Average: 5.00

Standard Deviation: 1.76

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 366 of 407 respondents chose not to answer.

26) Are you aware of new equipment or techniques on the market or in development that could be potentially of use in fire debris
analysis? These may be in the extraction, analysis, instrumentation, or interpretation of fire debris and ignitable liquids.
Please indicate the type of potential improvement such as: reduction of analysis time, elimination of background, specificity
of identification, etc?

Yes (20) 15.0%

No (113) 85.0%

Total (133)

An answer to this question is not required and 274 of 407 respondents chose not to answer.

26a) Description and/or Contact

Galaxie Software

I would like to develop a GC/MS/MS method on Saturn 2000 If anyone has info
I worked a NASA for a five years and we recovered used TENAX Solid Sorbant Materials , collected with SAS and
then cryo focused GC/MS I do not have the preconcentrator or instrumentation but I do believe we could have
excellent recovery, maybe try different combos of sorbents
 Jeff Foust; tower112@verizon.net

GC-GC, coelution software

Flash GC/saves time

Currently developing a database of pyrolysis products

1. GC X GC/MS - Coast Guard

2. FT-Ion Cyclotron MS - Alan Marshal @ Florida State
3. Stable Isotope Ratio MS - John Jasper
4. DART with JEOL

Rapid idaho tech.

Statical methods for automated searches of a database. Contact Dr. Michael Sigman of the National Center for
Forensic Science.

All of our samples are sent out to State/Federal labs for analysis

not new - but dflex apparatus when put into can during evidence collection seem to mitigate effects of length
between collection and examination on samples

Not brand new but we are using ALS (Alternative Light)

reduction of analysis time-custom column

Lt. Joe Powell

fast GC, GC-IRMS

Time of Flight GC-MS

An answer to this question is not required and 391 of 407 respondents chose not to answer.

27) What are the short-term needs in analytical methods for fire debris analysis?

Faster turn-around time, more personnel, better software

More pyrolysis matrix practice!

more rapid turn around times from the laboratories doing the analysis

Better information on background interferences

Higher Resolution

Comparison improvement in selectivity

updated software, GC comsumables

Better method for recovery of light oxygenates in every sample (i.e. without special prep, separate extraction,
etc,)

Access to standards

Replacing CS2 as a solvent

Alternate extraction media other than the ACS

More training opportunities

HAving State LAbs process Faster COOK COUNTY IL

Faster analysis

N/A for our investigation team

Fire debris control samples and fire debris other than ignitable liquids

Financial

None

GREATER PERSONNEL
 N/A

Reduction in analysis time.

Our team dooesn't deal in these matters.

Not a lab guy, can't tell you other than the ISP lab is awful and never gets a positive sample.

better communication between technicians and investigators

Field GC

update standards and pyrolysis database

GC/MS in all labs

simple/reliable/testifible on scene real time hit on accelerents-either polar or non-polar.

N/A

An answer to this question is not required and 379 of 407 respondents chose not to answer.

28) What are the long-term needs in analytical methods for fire debris analysis?

fingerprinting of ignitable liquids, expecially in regards to relating the liquid found at the scene to the liquid found
in t he fire debris.

Database of pyrolysis products and pyrolysis/ILR mix

More sensitive and discriminating sorbant develop.

same a #27, often results are received too late to be of much help to an investigation.

A comprehensive library of ignitable liquids with TIC and EIC of compounds

See #27

Library Searches on TIC

Better containers

TRACEABLE STANDARDS

Pyrolysis database
Classes offered for interpretation of pyrolysis products
Classes offered for advance organic chemistry for fire debris analysts

pyrolysis standards, extensive training of recovery of materail, access to new technology

More info about petroleum products in background materials (quantities, types, etc.)

Sharing of data nationwide

Consistency of reports and better interaction between laboratory analysts and fire investigators

Indiviualization of IL found on two sources - matching.

Pyrolisis Product Standards.
Applying FAST GC
Items in #

Shorter run times, extraction times

effects of ignitable liquids on the human body

On site initial testing - example a small kit

unknown

Influence of heat and fire on materials

Financial

Better adherence to ASTM standards

IN DEPTH SCIENTIFIC METHOD

 We would like to see production of DFLEX resume.

N/A

Consistency and increased specificity in data interpretation. Reduce effects from interfering products.

N/A

see above

reduced costs associated with modern instrumentation

update instrumentations

New/better adsorption media, solventless elutions

nationally recognized varifiable results from documented on scene equipment, used by on scene investigators

new equipment

An answer to this question is not required and 375 of 407 respondents chose not to answer.

v) Part E. Fire Debris Data Interpretation (Check an answer only on those questions which apply to you)

29) How often do you use an in-house ignitable liquid reference collection in case work?

never (43) 37.7%

sometimes (21) 18.4%

often (21) 18.4%

every case (29) 25.4%

Total (114)

An answer to this question is not required and 293 of 407 respondents chose not to answer.

30) How often have you used the on-line Ignitable Liquid Reference Collection (ILRC) in case work? (See
http://ncfs.ucf.edu/databases.html for more information about this database)

never (66) 59.5%

sometimes (32) 28.8%

often (11) 9.9%

every case (2) 1.8%

Total (111)
 An answer to this question is not required and 296 of 407 respondents chose not to answer.

31) How does your laboratory routinely identify an ignitable liquid in fire debris (check one):

Pattern recognition by FID pattern

(3) 4.2%
alone

Pattern recognition by TIC pattern

(2) 2.8%
alone

Pattern recognition by mass

chromatography (extracted ion (52) 73.2%
chromatogram or extracted ion profile)

target analysis (0) 0.0%

Identification of individual components (5) 7.0%

Other: (specify) (9) 12.7%

Total (71)

An answer to this question is not required and 336 of 407 respondents chose not to answer.

31a) If you checked "Other" above please specify how your laboratory would identify an ignitable liquid:

all of the above

Combination of TIC, EIC and component identification

TIC also

Combo of pattern recognition by TIC, EIC and identification of target compounds.

Acombination of all of them: pattern from the TIC, and individual componenets within the pattern

N/A

outsourced

N/A

Tic Pattern, extracted ion pattern, and identification of individual components

An answer to this question is not required and 398 of 407 respondents chose not to answer.

32) Rate the importance of the following courses as part of the education of fire debris analysts. (1-7 where: 1 = Not Important,
4 = Moderate, 7 = Extremely)
32a) General chemistry

Probability Density Function

Cumulative Distribution

Average: 5.99

Standard Deviation: 1.46

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 316 of 407 respondents chose not to answer.

32b) Advanced organic chemistry

Probability Density Function

 Cumulative Distribution

Average: 5.41

Standard Deviation: 1.54

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 317 of 407 respondents chose not to answer.

32c) Inorganic chemistry

Probability Density Function

 Cumulative Distribution

Average: 4.87

Standard Deviation: 1.56

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 316 of 407 respondents chose not to answer.

32d) Introductory physics

Probability Density Function

 Cumulative Distribution

Average: 4.98

Standard Deviation: 1.78

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 317 of 407 respondents chose not to answer.

32e) Instrumental analysis

Probability Density Function

 Cumulative Distribution

Average: 6.11

Standard Deviation: 1.47

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 317 of 407 respondents chose not to answer.

32f) Organic chemistry

Probability Density Function

 Cumulative Distribution

Average: 6.02

Standard Deviation: 1.42

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 317 of 407 respondents chose not to answer.

32g) Analytical chemistry

Probability Density Function

 Cumulative Distribution

Average: 5.78

Standard Deviation: 1.42

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 320 of 407 respondents chose not to answer.

32h) Advanced physics

Probability Density Function

 Cumulative Distribution

Average: 4.00

Standard Deviation: 1.83

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 320 of 407 respondents chose not to answer.

32i) Physical chemistry

Probability Density Function

 Cumulative Distribution

Average: 4.60

Standard Deviation: 1.98

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 319 of 407 respondents chose not to answer.

32j) Advanced physics

Probability Density Function

 Cumulative Distribution

Average: 3.89

Standard Deviation: 1.86

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 320 of 407 respondents chose not to answer.

32k) Advanced mathematics

Probability Density Function

 Cumulative Distribution

Average: 3.87

Standard Deviation: 1.87

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 320 of 407 respondents chose not to answer.

32l) Other:

7
 An answer to this question is not required and 403 of 407 respondents chose not to answer.

32m) (if other please indicate course names here):

One needs either a degree in chemistry or sufficient chemistry, physics and math . I personally went back to
school after already having a B>A> and took sciene and egineering courses-eventually received an MS-mainly
though in house continuous learning on the job is a must!!

Spectroscopy / Structural Elucidation

Combustion gas analysis

Digital Imaging

logic

An answer to this question is not required and 402 of 407 respondents chose not to answer.

vi) Part F. Explosives Analysis Case Work (Check an answer only on those questions which apply to you)

vii) Please indicate which, if any, of the following explosives analytical laboratory procedures your agency performed (items 34
through 41) and the number of times they were performed items 42 through 49) in 2006:

Analytical Procedure (Yes/No)

33) Intact Low Explosives

Yes (35) 44.9%

No (43) 55.1%

Total (78)

An answer to this question is not required and 329 of 407 respondents chose not to answer.
34) Intact High Explosives

Yes (20) 26.0%

No (57) 74.0%

Total (77)

An answer to this question is not required and 330 of 407 respondents chose not to answer.

35) Intact IEDs

Yes (27) 35.1%

No (50) 64.9%

Total (77)

An answer to this question is not required and 330 of 407 respondents chose not to answer.

36) Post-Blast Low Explosives

Yes (43) 56.6%

No (33) 43.4%

Total (76)

An answer to this question is not required and 331 of 407 respondents chose not to answer.

37) Post Blast High Explosives

Yes (16) 21.3%

No (59) 78.7%

Total (75)
 An answer to this question is not required and 332 of 407 respondents chose not to answer.

38) Post Blast IEDs

Yes (31) 42.5%

No (42) 57.5%

Total (73)

An answer to this question is not required and 334 of 407 respondents chose not to answer.

39) Intact Incendiary Device

Yes (37) 48.1%

No (40) 51.9%

Total (77)

An answer to this question is not required and 330 of 407 respondents chose not to answer.

40) Post-Reaction incendiary

Yes (36) 47.4%

No (40) 52.6%

Total (76)

An answer to this question is not required and 331 of 407 respondents chose not to answer.

41) Intact Low Explosives

0 (24) 36.9%

1-50 (34) 52.3%

51-100 (6) 9.2%

 101-150 (0) 0.0%

151-200 (0) 0.0%

201-250 (0) 0.0%

251-300 (0) 0.0%

>300 (1) 1.5%

Total (65)

An answer to this question is not required and 342 of 407 respondents chose not to answer.

42) Intact High Explosives

0 (40) 65.6%

1-50 (20) 32.8%

51-100 (1) 1.6%

101-150 (0) 0.0%

151-200 (0) 0.0%

201-250 (0) 0.0%

251-300 (0) 0.0%

>300 (0) 0.0%

Total (61)

An answer to this question is not required and 346 of 407 respondents chose not to answer.

43) Intact IEDs

0 (37) 56.9%

1-50 (26) 40.0%

51-100 (1) 1.5%

101-150 (1) 1.5%

151-200 (0) 0.0%

201-250 (0) 0.0%

251-300 (0) 0.0%

>300 (0) 0.0%

Total (65)
 An answer to this question is not required and 342 of 407 respondents chose not to answer.

44) Post-Blast Low

0 (26) 40.0%

1-50 (36) 55.4%

51-100 (2) 3.1%

101-150 (0) 0.0%

151-200 (1) 1.5%

201-250 (0) 0.0%

251-300 (0) 0.0%

>300 (0) 0.0%

Total (65)

An answer to this question is not required and 342 of 407 respondents chose not to answer.

45) Post Blast High

0 (44) 72.1%

1-50 (16) 26.2%

51-100 (0) 0.0%

101-150 (0) 0.0%

151-200 (0) 0.0%

201-250 (0) 0.0%

251-300 (0) 0.0%

>300 (1) 1.6%

Total (61)

An answer to this question is not required and 346 of 407 respondents chose not to answer.

46) Post Blast IED's

 0 (35) 54.7%

1-50 (26) 40.6%

51-100 (2) 3.1%

101-150 (0) 0.0%

151-200 (1) 1.6%

201-250 (0) 0.0%

251-300 (0) 0.0%

>300 (0) 0.0%

Total (64)

An answer to this question is not required and 343 of 407 respondents chose not to answer.

47) Intact Incendiary Device

0 (31) 49.2%

1-50 (31) 49.2%

51-100 (1) 1.6%

101-150 (0) 0.0%

151-200 (0) 0.0%

201-250 (0) 0.0%

251-300 (0) 0.0%

>300 (0) 0.0%

Total (63)

An answer to this question is not required and 344 of 407 respondents chose not to answer.

48) Post-Reaction incendiary

0 (30) 46.9%

1-50 (29) 45.3%

51-100 (2) 3.1%

101-150 (1) 1.6%

151-200 (1) 1.6%

201-250 (0) 0.0%

251-300 (1) 1.6%

 >300 (0) 0.0%

Total (64)

An answer to this question is not required and 343 of 407 respondents chose not to answer.

viii) Part G. Explosives Analytical Methods (Check an answer only on those questions which apply to you)

49) In explosives analyses, how often do you use each of the following analytical techniques? (1-7 where: 1 = Never, 2 = Rare, 5
= Often, 7 = Exclusive)

49a) Microchemical analysis using PLM

Probability Density Function

Cumulative Distribution
 Average: 2.42

Standard Deviation: 1.97

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

49b) Spot tests

Probability Density Function

Cumulative Distribution
 Average: 3.10

Standard Deviation: 2.25

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 366 of 407 respondents chose not to answer.

49c) Ignition analysis

Probability Density Function

Cumulative Distribution
 Average: 3.50

Standard Deviation: 2.27

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 363 of 407 respondents chose not to answer.

49d) Microchemical analysis using stereomicroscopy

Probability Density Function

Cumulative Distribution
 Average: 2.45

Standard Deviation: 2.01

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

49e) TLC

Probability Density Function

Cumulative Distribution
 Average: 1.76

Standard Deviation: 1.40

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 369 of 407 respondents chose not to answer.

49f) Field explosives screening

Probability Density Function

Cumulative Distribution
 Average: 1.78

Standard Deviation: 1.54

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 366 of 407 respondents chose not to answer.

49g) IR

Probability Density Function

Cumulative Distribution
 Average: 3.20

Standard Deviation: 2.33

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

49h) Raman spectroscopy

Probability Density Function

Cumulative Distribution
 Average: 1.57

Standard Deviation: 1.34

Minimum: 1.00

Maximum: 6.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

49i) SEM-EDX

Probability Density Function

Cumulative Distribution
 Average: 2.83

Standard Deviation: 2.40

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

49j) ICP

Probability Density Function

Cumulative Distribution
 Average: 1.21

Standard Deviation: 0.73

Minimum: 1.00

Maximum: 5.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

49k) XRF

Probability Density Function

Cumulative Distribution
 Average: 2.00

Standard Deviation: 1.99

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

49l) GC/MS

Probability Density Function

Cumulative Distribution
 Average: 2.88

Standard Deviation: 2.00

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 364 of 407 respondents chose not to answer.

49m) GC/FID

Probability Density Function

Cumulative Distribution
 Average: 1.46

Standard Deviation: 1.05

Minimum: 1.00

Maximum: 5.00

An answer to this question is not required and 366 of 407 respondents chose not to answer.

49n) CE

Probability Density Function

Cumulative Distribution
 Average: 1.26

Standard Deviation: 0.85

Minimum: 1.00

Maximum: 5.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

49o) HPLC

Probability Density Function

Cumulative Distribution
 Average: 1.46

Standard Deviation: 1.27

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

49p) HPLC/TEA

Probability Density Function

Cumulative Distribution
 Average: 1.21

Standard Deviation: 0.77

Minimum: 0.00

Maximum: 4.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

49q) FTIR

Probability Density Function

Cumulative Distribution
 Average: 3.17

Standard Deviation: 2.38

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

49r) NMR

Probability Density Function

Cumulative Distribution
 Average: 1.13

Standard Deviation: 0.47

Minimum: 1.00

Maximum: 3.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

49s) SEM-WDX

Probability Density Function

Cumulative Distribution
 Average: 1.11

Standard Deviation: 0.39

Minimum: 1.00

Maximum: 3.00

An answer to this question is not required and 369 of 407 respondents chose not to answer.

49t) IMS

Probability Density Function

Cumulative Distribution
 Average: 1.21

Standard Deviation: 0.57

Minimum: 1.00

Maximum: 3.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

49u) XRD

Probability Density Function

Cumulative Distribution
 Average: 1.46

Standard Deviation: 1.31

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

49v) GC/TEA

Probability Density Function

Cumulative Distribution
 Average: 1.23

Standard Deviation: 0.74

Minimum: 1.00

Maximum: 5.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

49w) GC/ECD

Probability Density Function

Cumulative Distribution
 Average: 1.27

Standard Deviation: 0.96

Minimum: 1.00

Maximum: 6.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.

49x) IC

Probability Density Function

Cumulative Distribution
 Average: 2.10

Standard Deviation: 1.98

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

49y) HPLC/MS

Probability Density Function

Cumulative Distribution
 Average: 1.46

Standard Deviation: 1.33

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 368 of 407 respondents chose not to answer.

49z) Other:

Probability Density Function

Cumulative Distribution
 Average: 2.70

Standard Deviation: 2.98

Minimum: 1.00

Maximum: 9.00

An answer to this question is not required and 397 of 407 respondents chose not to answer.

49aa)(please indicate):

We do not have SOPs for explosives -all we do is possibly process, visually inspect and call ATF or FBI

Have none available to us

Didnt receive samples for analysis

N/A

An answer to this question is not required and 402 of 407 respondents chose not to answer.

50) Are you aware of new equipment or techniques on the market or in development that could be potentially of use in explosives
analysis? These improvements may be in analytical instrumentation, recovery of post-explosion residue, isolation of un-
reacted products, component reconstruction, etc Please indicate the type of potential improvement such as: reduction of
analysis time, elimination of background, specificity of identification, etc?

Yes (13) 14.0%

No (80) 86.0%

Total (93)
 An answer to this question is not required and 314 of 407 respondents chose not to answer.

50a) Description and/or Contact

IMS ( I did my MS on this instrument) is not new but a drift tube GC/MS , electronic sniffer-

Jeff Foust; tower112@verizon.net

lc-ms

Arkansas State Crime Laboratory

air sampling detection devices

not at this time

jamesp.taylor@dc.gov

Capillary Electrophoresis

An answer to this question is not required and 399 of 407 respondents chose not to answer.

51) What are the short-term needs in analytical methods for explosives analysis?

Education on what is out there -we are located in the refinery and Ship Channel area of HOuston

There needs to be some comprehensive methods or maybe just training procedures for analysis published by
swgfex. What is there is, is good but it is more of an outline than a comprehensive how-to.

Basic/Advanced Course in Explosive Analysis and a Federal mandate ordering departments to allow their EOD
teams to allow for analysis in each case.

training in explosive chemical composition, analysis, and availability of resources.

Training course for laboratory analysts that deals specifically with the chemistry and analysis of explosive
materials (the two federal courses I've attended are geared toward investigators and put all the emphasis on post-
blast scene processing)

Explosives materials analytical data database by analytical method

Unknown

Financial

Digital imaging training

analysis of items for investigative purpose- no suspect no tests.

GREATER ROBOTICS TECHNOLOGY

Sample collection

N/A

Resources and training

simple field explosive analytical analysis system

Trained technicians who communicate well with investigators.

My agency doesn't currently have the means for this.

on scene analysis of suspect explosive compounds

 Rapid in field use

An answer to this question is not required and 388 of 407 respondents chose not to answer.

52) What are the long-term needs in analytical methods for explosives analysis?

Developing relationship or support for agency

There needs to be more sharing of information and analytical techniques especially by the federal agencies as they
have abundant resources and encounter more than the state or local laboratories.

on-going training

Derivitization protocols to allow alternate analytical methods.

Unknown

Financial

Digital imaging training

GREATER PREVENTION METHODS FOR FUTURE GENERATIONS

Equipment and training

N/A

resources and training

simple field explosive analytical analysis system

Reduced costs for modern instrumentation.

Have the capability to complete this.

Maricopa County Crime Lab has no resources in explosive analysis

lost cost simple analysis

We would like to start analyzing explosives

An answer to this question is not required and 390 of 407 respondents chose not to answer.

53) For explosives/explosives residue analysis, how often do you see the following QA/QC tests: (1-7 where: 1 = Never, 2 =
Rare, 5 = Often, 7 = Exclusive)

53a) 8095 Calibration Mix A

Probability Density Function

 Cumulative Distribution

Average: 1.47

Standard Deviation: 1.26

Minimum: 1.00

Maximum: 6.00

An answer to this question is not required and 373 of 407 respondents chose not to answer.

53b) 8095 Calibration Mix B

Probability Density Function

 Cumulative Distribution

Average: 1.47

Standard Deviation: 1.26

Minimum: 1.00

Maximum: 6.00

An answer to this question is not required and 373 of 407 respondents chose not to answer.

53c) Smokeless Powder (or similar) mixture

Probability Density Function

 Cumulative Distribution

Average: 3.37

Standard Deviation: 2.27

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 369 of 407 respondents chose not to answer.

53d) Internal Standard

Probability Density Function

 Cumulative Distribution

Average: 1.57

Standard Deviation: 1.45

Minimum: 0.00

Maximum: 6.00

An answer to this question is not required and 377 of 407 respondents chose not to answer.

53e) (please indicate):

5 nitro 2 fluoro toluene

1
 IC Standards

An answer to this question is not required and 401 of 407 respondents chose not to answer.

53f) Solvent Blank

Probability Density Function

Cumulative Distribution

Average: 3.62

Standard Deviation: 2.73

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 367 of 407 respondents chose not to answer.
53g) Peer Review

Probability Density Function

Cumulative Distribution

Average: 3.79

Standard Deviation: 2.79

Minimum: 0.00

Maximum: 7.00

An answer to this question is not required and 369 of 407 respondents chose not to answer.

53h) Other:
 1

An answer to this question is not required and 395 of 407 respondents chose not to answer.

53i) (please indicate):

proficiency testing, standards of explosives run on our instruments

known chemical compounds and mixtures

in house standards

"known" reference standard are run prior to any testing performed (ie color tests for anions, etc.)

no samples were received for analysis

N/A

An answer to this question is not required and 399 of 407 respondents chose not to answer.

ix) Part H. Explosives Data Interpretation (Check an answer only on those questions which apply to you)

54) How often do you use an in-house explosives reference collection in case work?

never (30) 36.6%

sometimes (31) 37.8%

 often (12) 14.6%

every case (9) 11.0%

Total (82)

An answer to this question is not required and 325 of 407 respondents chose not to answer.

55) Would you use an on-line explosives data (morphological descriptions, microphotographs, IR, MS, etc) in case work?

never (14) 17.7%

sometimes (30) 38.0%

often (27) 34.2%

every case (8) 10.1%

Total (79)

An answer to this question is not required and 328 of 407 respondents chose not to answer.

56) Rate the importance of the following courses as part of the education of explosives analysts. (1-7 where: 1 = Not Important,
4 = Moderate, 7 = Extremely)

56a) General Chemistry

Probability Density Function

 Cumulative Distribution

Average: 5.86

Standard Deviation: 1.45

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 341 of 407 respondents chose not to answer.

56b) Advanced organic chemistry

Probability Density Function

 Cumulative Distribution

Average: 5.28

Standard Deviation: 1.57

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 343 of 407 respondents chose not to answer.

56c) Inorganic chemistry

Probability Density Function

 Cumulative Distribution

Average: 5.50

Standard Deviation: 1.55

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 343 of 407 respondents chose not to answer.

56d) Introductory physics

Probability Density Function

 Cumulative Distribution

Average: 5.34

Standard Deviation: 1.62

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 343 of 407 respondents chose not to answer.

56e) Advanced physics

Probability Density Function

 Cumulative Distribution

Average: 4.55

Standard Deviation: 1.89

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 342 of 407 respondents chose not to answer.

56f) Advanced mathematics

Probability Density Function

 Cumulative Distribution

Average: 4.38

Standard Deviation: 1.83

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 342 of 407 respondents chose not to answer.

56g) Intro. to explosives

Probability Density Function

 Cumulative Distribution

Average: 6.38

Standard Deviation: 1.20

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 341 of 407 respondents chose not to answer.

56h) Combustion explosions

Probability Density Function

 Cumulative Distribution

Average: 6.20

Standard Deviation: 1.28

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 341 of 407 respondents chose not to answer.

56i) Organic chemistry

Probability Density Function

 Cumulative Distribution

Average: 5.54

Standard Deviation: 1.57

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 342 of 407 respondents chose not to answer.

56j) Analytical chemistry

Probability Density Function

 Cumulative Distribution

Average: 5.49

Standard Deviation: 1.59

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 342 of 407 respondents chose not to answer.

56k) Physical chemistry

Probability Density Function

 Cumulative Distribution

Average: 5.02

Standard Deviation: 1.64

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 342 of 407 respondents chose not to answer.

56l) Instrumental analysis

Probability Density Function

 Cumulative Distribution

Average: 5.73

Standard Deviation: 1.59

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 344 of 407 respondents chose not to answer.

56m) Chemical analysis of explosives

Probability Density Function

 Cumulative Distribution

Average: 6.09

Standard Deviation: 1.47

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 342 of 407 respondents chose not to answer.

56n) The chemistry of pyrotechnics

Probability Density Function

 Cumulative Distribution

Average: 6.20

Standard Deviation: 1.39

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 341 of 407 respondents chose not to answer.

56o) Explosives analysis

Probability Density Function

 Cumulative Distribution

Average: 6.49

Standard Deviation: 1.09

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 339 of 407 respondents chose not to answer.

56p) Other:

Probability Density Function

 Cumulative Distribution

Average: 5.33

Standard Deviation: 2.08

Minimum: 3.00

Maximum: 7.00

An answer to this question is not required and 404 of 407 respondents chose not to answer.

56q) (please indicate):

Blast effects calculations

Digital imaging training

N/A

3
 Safety, Post and Pre-Blast

An answer to this question is not required and 402 of 407 respondents chose not to answer.

57) Rate training or course work in the following areas for explosives analysts? (1-7 where: 1 = Not Important, 4 = Moderate, 7
= Extremely)

57a) History of Explosives

Probability Density Function

Cumulative Distribution

Average: 5.16
 Standard Deviation: 1.57

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 318 of 407 respondents chose not to answer.

57b) Terminology and vocabulary of explosives

Probability Density Function

Cumulative Distribution

Average: 5.98

Standard Deviation: 1.49

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 318 of 407 respondents chose not to answer.
57c) Composition of low explosive materials

Probability Density Function

Cumulative Distribution

Average: 6.22

Standard Deviation: 1.22

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 319 of 407 respondents chose not to answer.

57d) Construction of commercial pyrotechnic devices

Probability Density Function

 Cumulative Distribution

Average: 6.00

Standard Deviation: 1.30

Minimum: 1.00

Maximum: 8.00

An answer to this question is not required and 318 of 407 respondents chose not to answer.

57e) Construction of military devices (e.g. simulators, rockets, hand grenades)

Probability Density Function

 Cumulative Distribution

Average: 6.13

Standard Deviation: 1.19

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 318 of 407 respondents chose not to answer.

57f) Range procedures

Probability Density Function

 Cumulative Distribution

Average: 5.73

Standard Deviation: 1.53

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 318 of 407 respondents chose not to answer.

57g) Peroxide Based Explosives

Probability Density Function

 Cumulative Distribution

Average: 6.05

Standard Deviation: 1.25

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 315 of 407 respondents chose not to answer.

57h) Manufacturing of explosives

Probability Density Function

 Cumulative Distribution

Average: 6.13

Standard Deviation: 1.25

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 320 of 407 respondents chose not to answer.

57i) Composition of high explosive materials

Probability Density Function

 Cumulative Distribution

Average: 6.10

Standard Deviation: 1.28

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 318 of 407 respondents chose not to answer.

57j) Construction of improvised devices

Probability Density Function

 Cumulative Distribution

Average: 6.22

Standard Deviation: 1.21

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 314 of 407 respondents chose not to answer.

57k) Analytical examination of high and low explosive materials and residues

Probability Density Function

 Cumulative Distribution

Average: 6.29

Standard Deviation: 1.23

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 318 of 407 respondents chose not to answer.

57l) Recognition of improvised device components

Probability Density Function

 Cumulative Distribution

Average: 6.21

Standard Deviation: 1.27

Minimum: 1.00

Maximum: 7.00

An answer to this question is not required and 313 of 407 respondents chose not to answer.

57m) Other:

Probability Density Function

 Cumulative Distribution

Average: 6.30

Standard Deviation: 0.95

Minimum: 5.00

Maximum: 7.00

An answer to this question is not required and 397 of 407 respondents chose not to answer.

57n) (please indicate):

All sections involving practical

Oxidizers

Digital imaging training

any explosive advanced training

 Post Blast Investigation procedures

An answer to this question is not required and 402 of 407 respondents chose not to answer.

x) Part I Fire Scene Specialists (Check an answer only on those questions which apply to you)

58) Indicate the number of fire scenes processed in 2006 by all of the investigators at your physical location (check one):

1-50 (130) 48.1%

51-100 (41) 15.2%

101-250 (41) 15.2%

251-500 (33) 12.2%

501-750 (10) 3.7%

751-1000 (6) 2.2%

1001-2000 (4) 1.5%

>2000 (5) 1.9%

Total (270)

An answer to this question is not required and 137 of 407 respondents chose not to answer.

59) Have you had formal training in the investigation of fire scenes?

Yes (273) 94.8%

No (15) 5.2%

Total (288)

An answer to this question is not required and 119 of 407 respondents chose not to answer.

59a) Rate the importance of formal training in the investigation of fire scenes: (1-7 with 1 = Not at all, and 7 = Very)
 1 (3) 1.1%

2 (2) 0.7%

3 (2) 0.7%

4 (2) 0.7%

5 (6) 2.2%

6 (26) 9.4%

7 (235) 85.1%

Total (276)

An answer to this question is not required and 131 of 407 respondents chose not to answer.

60) What type of containers do you use in submitting fire debris to a laboratory for ignitable liquid determination?

Container / Percent of Time

60a) Clean Unused Paint Cans

Probability Density Function

Cumulative Distribution
 Average: 78.82

Standard Deviation: 30.81

Minimum: 0.00

Maximum: 100.00

An answer to this question is not required and 199 of 407 respondents chose not to answer.

60b) Glass Jars/Vials

Probability Density Function

Cumulative Distribution
 Average: 21.58

Standard Deviation: 29.08

Minimum: 0.00

Maximum: 100.00

An answer to this question is not required and 292 of 407 respondents chose not to answer.

60c) Nylon Bags

Probability Density Function

Cumulative Distribution
 Average: 16.80

Standard Deviation: 26.18

Minimum: 0.00

Maximum: 100.00

An answer to this question is not required and 330 of 407 respondents chose not to answer.

60d) Other:

Probability Density Function

Cumulative Distribution
 Average: 12.24

Standard Deviation: 21.02

Minimum: 0.00

Maximum: 80.00

An answer to this question is not required and 375 of 407 respondents chose not to answer.

60e) If you checked "Other" above, (please specify what you would use here):

Absorbent Pads

Kapak

paper bags

kapak

PAPER BAGS

paper bags

Paper & plastic bags

Special Sample Containers

plastic bags

K pac bags

bags

plastic bags

Clear arson bags

evidence cans

choice of CFI and Lab

paper bags

sterile cans/jars

Paper Bags

paperbags (large items)

paper bag
 Other Bags, Envelopes

Plastic bags with sealed bottom exemplar space

Plastic/paper depending on size of object and what it is being analized for.

paper sacks

KPAK

Kapak Bags

paper evidence bags

brown paper bags

Paper bags

An answer to this question is not required and 378 of 407 respondents chose not to answer.

61) What type of equipment is essential to help you process fire scenes?

An Accelerant K-9 is one of the most useful tools available outside of a shovel and pointing trowl.

Proper carpentry tools, cans, gloves, protective gear.

Shovels, cameras, sieves, scoops, knife, gloves, containers , measuring tools

rakes, shovels, sreens, magnets, fingerprint processing equipment, hand tools, magnifying glass, sometimes large
equipment for debris removal

knowledgable investigators, accelerant detection canine team, misc. hand tools cans, glass jars/vials, personal
protective equipment

PROTECTIVE GEAR, SEARCHING TOOLS, EVIDENCE CONTAINERS

Hand Tools
Power Tools
Heavy Equipment
Manpower
Canine

magnet, directional flags, tweezers, camera, patience. so many more.

Camera, Hand tools

Hand Tools
Heavy Equipment
Minimum, Level C protection
Standard Safety Equipment
Vehicle
Digital cameras
Digital Video

Hydrocarbon detector
UV source

lighting
evidence collection equiptment cordless saws and drills

Photographic, VOC monitors, Laptops, Digging equipment, lighting, measuring equopment, evidence collecting

Good lighting, respiratory protection, basic tools to dig, excellent camera, proper evidence packaging materials,
sharp utility knife

SHOVELS, STRAINER / SIFTERS, SMALL TOOLS & BOLT & NUT DRIVERS, HAND TROWEL, PORTABLE LIGHTING.

Proper evidence collection and storage facilities on vehicles

Measuring devices, shovels, evidence containers, hand tools, safety gear

 We use a mobile laboratory containing microscopes and much equipment

Shovel, drywall puller, flashlight digital camera, safety equipment

Camera, Shovel, Rake, broom, Screw drivers, Gloves, Evidence collection containers, power tools, hand held tools,
boots, cover-alls, 921

NFPA 921

Shovel
rake
hand shovel
hand rake
camera
tape measure
lighting

all listed in NFPA 921

evidence collection tools and containers

Gas detectors
assortment of tools
camera
detection canine

Shovels, rakes and other hand tools

lot of lights

Digital imaging equipment

Shovel, rake, trowel, brush/broom, camera, tape measure

Camera, disposable gloves, Protective clothing, safety gear, shovels, brooms, eviedence containers, labels,
scrappers, Flash light, saw, small tools i.e. screw drivers, wood chisels, razor blades,

manpower,

many types starting with shovel and small to big rakes and hoes, electric saws, etc

liquid and solid material apparatus, shovels, tweezers

hand tools, gloves, evidence cans, digital cameras, lights, generator

Temp lighting, camera, tape recorders paper pads ect...

evidence containers, cut off hoe, screen, TIF8800A accelerant detector, shovels, camera

Personal Protective Equipment

too braod of a question

Paper/Pen; Flashlight; Camera; shovel, rake, broom, etc.; PPE-Gloves,Helmet,Boots, etc.; Decon Equipment;
Misc. Hand Tools;

camera and evidence collection materials as well as resource books

Basic Hand tools

Hand tools, safety equipment, lighting

Paint cans, hand tools, lights, digging tools

Al various types of construction equipment. Every thing from shovels to sifters.

Basic tools/Shovel/Protective gloves/Bunker gear/Evidence collection kit/Crime scene tape/Evidence marking

cones/Measuring divices/Haz-Mat suits when needed/Lighting/Camera/Canine

Hydrocarbon Detector, Laser Measuring Device, Shovels, Water Cans, Graph paper, Digital Recorders, Digital
Cameras, Respiratory Protection, PPE

Basic Disposable Hand Tools & Metal Containers

lights, hand tools, camera, tape recorder, video, portable power, phones/ radios, power saw, ladders, sifters.

shovels, scoops, brooms, water standard hand tools

Pickup
Water

Hand tools large and small

 Small, clean hand tools; camera; pen and paper; measure device; good lights; latent print kit; circuit tester

shovesl rakes, cameras

Camera, shovels, rakes hand tools K-9, ignitable vapor detectors, volt-ohm meters, etc.

lighting, hand tools, camera, video recorder, tape recorder, sketch pad, tape measure, water, generator, evidence
cans and bags

Tools and sterile evidence cans/jars

screens, flammable/combustible vapor detector, shovels, volt/ohm meter, various hand tools, personal protective
equipment.

Camera, flash, shovels, trowels, measuring tools, portable ladder, evidence containers; cans, plastic bags, paper
bags, clean uncontaminated razor knifes or other cutting tools, Safety equipment; hard hat, nomex clothing, steel
toe water proof boots, knee pads

An open mind. a good forensic team.

Personal Protective equipment

Adequate tools and evidence collection equipment

Shovel, rake, broom, flashlight, camera, clipboard, hammer, drill, screwdriver, crowbar, bags, cans, tape, jack

Combustible gas detector, shovel, rake, broom, flashlights, leather gloves, evidence collection gloves, cans, tape
measure, graph paper, safety boots, hard hat, camera, computer, recorder

Camera's, Assorted hand tools as well as small gardening tools, brooms, shovels, large tubs, tape measure,
flashlight, PPE,

gloves, respirator, eye protection, head gear, shovel, troughs, evidence containers, labels, camera, absorption
material, water, decon soap, brushes

shovel, masons trowel, garden trowel, screw drivers, hammer, pry bar, various types of wrenches, evidence
containers, evidence tags, tape measure, various types of gloves, hard hat, boots, tyvek suits, safty glasses,
ladder, camera, notebook, pens, pencils

Shovel, latex gloves, flashlight, basic tool kit, camera, sketch pad, hose, boots, work gloves, evidence collection
tools, note pad

sifting screens, measuring devices, video & digital photograph, USB microscope

Brain, proper attitude, eyes, shovel, boots, respirator, camera, graph paper,

shovels, rakes, brooms, water, ladders, evidence cans, protective equipment

Hand tools

Shovels, rakes, small hand tools, Camera, evidence collection supplys

Lights, Camera, shovel, broom, tape measure

PPE, Instrument list is endless

digital camera

digtial camera, aux lighting

Photo/Video Equipment. Measuring equipment. Shovel. Evidence collection equipment. Safety equipment. More.

Photography equipment, hand tools, measuring equipment, safety equipment

Hand Tools, PPE, Lighting Equipment

accelerant detection, lighting, tools

Cameras, measuring devices, K-9

Hand held shovels

Fire/debris proof boots
Hard Hat
Collection kits

Shovel, rake, lights, hand tools, evidence collection containers, safety equipment

accelerant detection equipt.

LIGHTING
HAND TOOLS

Camera, diagram, shovel, rake, broom,

 camera, shovel, flashlight, eyeballs, common sense

Shovle, hand tools, cleaning agent, water, collection bags, camera, tape, paper, writting tool.

protective clothing, shovels, rakes, and camera

camera, type recorder, sketching software, lights. tools

manpower

camera

Hand Tools, Cameras, electronic tape measurement equipment.

rubber gloves,photo equipment,shovel,

sniffers

photographic equipment, evidence containers, gloves, pen, paper, measuring tape, hand tools

Tools such as shovels, rakes, saws, cameras

shovel, rake, hoe, tape measure, LIGHTS, camera, ladder, electric drill & saw, prybars, hand tools

shovel, gardening tools, camera

Ignitable liquid detector

Shovels, rakes, Camera, Protective clothing, disposable tyvek suits, forceps, bucket water w.brush to wash foot
wear to avoid cross contamination

MINI RE 2000

Breather mask, evidence bags, camera, shovel, paint brush

hand tools and time

Camera, hand tools, and reports.

Proper Safety Equipment

Shovel
Other items as necessary

area to clean tools that is easy to assemble and transport

tools,cameras, lighting, personal protection devices

shovels,brooms,rakes, small hand tools,cameras, lighting, evidence containers and bags, fire scene paperwork.

See NFPA 921

Hand tools, generators, sniffer

shovels, saws,trowels, hand shovels, brooms, water,co2 monitor, hydrocarbon detector, canine accelerant
detection

basic

laptop computer
digital camera

camera, hand tools, video camera

Hand Tools, Lighting, Photographic, Videographic, Written Documentation, Dictation

TIF meters, various HAZMAT meters and air processors

lighting, cameras

35mm camera (we don't do digital!), shovel.

Shovels, rakes, photographic, lighting, magnification, evidence collection evidence packaging

Clean evidence collection containers and collection equipment including both disposable and cleanable tools.
Measuring devices (electronic and scalar), photographic equipment, and field data collection forms.

shovels, rakes, hand tools, evidence containers,

Camera, evidence containers, brushes, digging tools,

Light, protective equiptment, fans, personnel, cameras

shovels, lights, proper training for knowing what to look for and how to process it. containers

NFPA 921,camera,tools,lap top,lights,

Disposable gloves, unlined cans,shovel.razor knife, hatchet, small tools, camera

 buckets, shifters, rakes, camera, lights

Laser measuring
Hydrocarbon detector
shovel

everthing

personal protective equipment, camera, paper & pen, tape rule, debris removal tools (shovel, trowel, garden
cultivator), sample containers, evidence bags/boxes, ladder

A GOOD SHOVEL, GOOD LIGHTING AND A STRONG BACK.

ALSO EXPERIENCE

Air masks, haligan, pry bar, camera, evidence collection containers, lights, screw drivers, knife,

Digging tools, lighting, photography equipment(35mm and digital), cad software

Shovel - 3 Tine Hoe

good photography and video equipment, good hand tools

lighting, photography, various large ansd small hand tools,

Camera, forms, lights, digging tools, evidence collection equipment.

supply of gloves;handtools

shovels, scoops, cameras, lighting

Hand tools, cameras

evidence containers, lighting, hand tools, cameras and related accessories, digitial voice recorders, personal
protective equipment

documentation supplies: sharpies (various colors), notepad, dial calipers, wire/conductor size tool, pens, pencils,
acetate sheets,
tools: hammer, screw drivers, saw saw, gardening tools (i.e. small spade, claw), wire cutters, side cuts, needle
nose pliers, crescent wrenches, mini saw, sifting screens, multi-meter,
Camera supplies...too much to list

Lighting, Sniffers, Screens, Hand tools, Heavy Equipment when needed, Cameras, Evidence containers,

clean hand tools

Protective gear, leather gloves, helmet, breathing appr., misc. hand tools

gloves, cutting tools, extraction tools, camera, measurement devices, evidence containers.

various tools used for digging in debris and collecting samples; proper footwear;

digging tools, photo equipment, collection materials, lights

shovel, hand tools, flash light, ppe

lighting, adequate clean PPE, large evidence collection containers

Gas Detectors
Electric Meters

Proper lighting, camera, work gloves, rubber gloves, coveralls, hard hat, pen and paper, scoop shovel, respirator
(full and half-face), evidence collection equipment,

Camera, trowel, shovel, recorder, multi-meter, brooms

Various Hand Tools, Computer Equipment, Digital/Video/ SLR Cameras, Electronic Measuring Devices, Drawing
Programs etc...

hydrocarbon detectors, camera, general overhaul tools

Camera, shovel, trowel, magnifying glass, tape measure, coveralls, evidence cans, vapor detector, gloves,
evidence sealing, forms, core borer, knife, scraper, etc., etc.

Time...

For wildland fire: Kestrel or other weather reading device;

GPS unit; digital cameras; 35mm camera; binoculars; magnets; magnifying glass;powerful flashlights; material
for casting footprints and tire tracks; measuring tapes, wheels, and rulers; evidence collection material; audio and
video recorders; high temperature thermometer with probe; metal detector; and cause determination handbook,
fire regulations guides, and fire prevention field guides
 hand tools, lighting, resource materials, heavy equipment at times

Camera, shovels, etc.

camera , hand tools , some time heavy equipment

Clean, hand operated equipment

Multiple tools

Lights, flashlight, mirrors, camera, shovel, broom,pry bar, hand tools

documented, clean cans and collection equipment, reliable mechanical equipment for second opinion on possible
accelerent

Hand tools and sometimes heavy equipment

hand tools, firefighter turn out gear, disposal nitrile gloves, cameras, evidence marking numbers and collection
materials, Dawn dishwashing liquid for decontamination of tools, Battery operated power tools, portable electric
generators and so on

Digital cameras, hand tools for excavation, PPE- respiratory and clothing

An answer to this question is not required and 239 of 407 respondents chose not to answer.

62) What type of equipment is desirable to help you process fire scenes?

Electronic sniffer, laser scanner, lighting systems

portable xray machine, portable sniffing devices, dogs

Multi-Gas Detector, Handheld identification instrument, (First Defender XL)

SAME AS ABOVE

containers, magnet(very large) sectioning rope or twine, camera, lots more.

Evidence collection kit

electonic detector for picking sample points

Mobile internet access for data research in the field

Portable Full Gas & Chemical ID Chromatagraph

ignitable liquid detection lighting

Hydrocarbon dectector, sifting screens, fingerprint and casting kits,

DISPOSABLE GLOVES, CEMENT TYPE HAND TROWEL FOR SMALL DIGGING & SCRAPING.

Lights, cans, Evidence bags

air sampling equipment, fire debris analysis equipment,

S/A Above # 61

time, and the willingness to do a thorough analysis.

sifter screens

Hand tools

detectors
camera
canine

K-9, hydrocarbon detectors

personnel

Digital imaging equipment

Volt meter, Tape recorder, Laptop computer, Large light, Ladder

 same

saa

Respiratory Protective

accelerant detectors

all of it! bad question!

Hydrocarbon detector; Accelerant Detection K-9,

more resource books

power tools

As above

all of the above in addition to trace evicence colleciton.

Electronic air quality tester/hydrocarbon based fuel detectors

Extra lighting, exhaust fan, handtools, computer with internet access,

all of the above

Portable x-ray

Generator, electric tools instead of battery

UV light device; combustible gas detector;

need a good hydrocarbon detector

same as above

Hydrocarbon detector

all of the above.

Pry bars, hammer, saw, hand tools, volt ohm meter, microscope (small portable) magnifying glass, sheet rock
saw, ph test strips, any one of variety of portable sniffers, CO meter, several magnets of different sizes,

gloves, cans, camera, shovels, brooms, jars, tweezers, qtips, paper bags, nylon bags, many more

Advanced scene documentation equipment

portable x-ray unit,

gas chromatograph, exray machine,

It depends on how comples the scene is.

Anything from buldozers to cranes.

additional lighting, ventilation, electronic sniffer

x-ray

another investigator, electrical engineer, fire protection engineer, canine

computer

Technical goods

cad diagraming program

The list of equipment necessary and desireable is so vast and varies from fire scene to fire scene that it could
never be completed here.

Same as Above

Respiratory protection, K-9,

accelerant detection equipt.

protective clothing, shovel, rakes, and camera

gas scopes

man power

sniffers,

alot

video equipment, multi-meter, respiratory protection, x-ray, thermal imager, Gas meter

The above listed tools as well as electronic measuring devices for hydrocarbons
 Same as above; video camera

accelerant detection canine

portable hydrocarbon detector

Knowledge then equipment necessary to re-construct scene

extra manpower

accelerant sniffers

Accelerant Detection Canine

basic

Hand tools. unsure what eveyone else is using

Same as Above (61) Resource Laptop with full chemical libraries.

Better gas meters than what we have.

Heavy machinery. Backhoe,payloader etc.

Computer modeling programs.

Deep pockets $.

sifters, good personal.

Disposable gloves, unlined cans,shovel.razor knife, hatchet, small tools,camera, meter to identify ignitible liquids

meters, computers,

everthing

graph paper & colored pencils, laser measuring device, small brushes, sifting screen, generator and lighting,
reciprocating saw

hydrocarbon detection equipment

Mobile investigation vehicle

Large Tarp

measuring devices

sniffer, multi-gas air monitoring device for safety

K-9, atmospheric monitor

infrared thermometers, fire scene resource guides available on laptop computer

see above

Flamable liquid detector

same

portable gas chromatograph, canine or electronic means

crime scene kits, digital cameras, florescent lighting

same as above

Sniffers

Two investigators to conduct all fire scene investigations; mandatory two person staffing

video camera, electronic "sniffer", trailer for all of the invesitgation equipment

GPS Equipment

same as above

analytical-field instruments

All of the above

front end loader, backhoe, crane, bobcats, shovels, rakes, wheelbarrels

Electric power tools

Accurate GPS that can diagram eveidence collection points.

documentable onscene detection equipment, documentable collection components,

Hand tools and sometimes heavy equipment

 man power

hydrocarbon detection and accelerant detection

An answer to this question is not required and 295 of 407 respondents chose not to answer.

62a) Does your agency have, or have access to, an accelerant (hydrocarbon) detection canine team to assist in investigations?

Don't Know (5) 1.9%

Yes (180) 69.2%

No (75) 28.8%

Total (260)

An answer to this question is not required and 147 of 407 respondents chose not to answer.

62b) If yes, what percentage of the investigations would utilize such a team?

1-20% (96) 50.0%

21-40% (44) 22.9%

41-60% (32) 16.7%

61-80% (7) 3.6%

81-100% (13) 6.8%

Total (192)

An answer to this question is not required and 215 of 407 respondents chose not to answer.

62c) Does your agency have, or have access to, a portable electronic "sniffing" device to assist investigations?

Don't Know (14) 5.6%

Yes (121) 48.0%

No (117) 46.4%

Total (252)
 An answer to this question is not required and 155 of 407 respondents chose not to answer.

62d) If yes, what percentage of the investigations would utilize such a device?

1-20% (48) 31.6%

21-40% (20) 13.2%

41-60% (28) 18.4%

61-80% (28) 18.4%

81-100% (28) 18.4%

Total (152)

An answer to this question is not required and 255 of 407 respondents chose not to answer.

63) Does your agency have a specific criteria used calling out the services of an accelerant (hydrocarbon) detection canine team?

Yes (79) 32.1%

No (167) 67.9%

Total (246)

An answer to this question is not required and 161 of 407 respondents chose not to answer.

63a) If "Yes", (please briefly describe the criteria used here):

If the investigator susects the use of an ignitable liquid for any reason the K-9 should be called. In the event of
large scale fires or multiple fires this is required.

Whenever necessary

Notify State Fire Marshal

Anytime a fire task force call out is requested, an accelerant detection canine team is automatically called out to
the scene to assist. If as a single investigator am called to a scene and determine by interviews and a preliminary
scene investigation, I will call a canine team out if deemed necessary.

requested by the local authorities or the state police Lt in charge of the fire investigation unit

FOLLOW THE POLICY OF THE DEPARTMENT WHO AS THE CANINE

Evidence of the presence or use of an accelerant at a fire scene and investigator unable to locate or identify
sample for analysis.

INCENDIARY FIRES WITH SIGNS OF IGNITABLE LIQUID

FATALITY SCENES AND LARGE INCIDENTS.
 When I/C or its INv call

If the client says ok.

If the fire is considered suspecious

When the fire is obviously incendiary and there are indications of an ignitable liquid, but no ignitable liquid odor is
able to be detected by the investigator on the scene.

Incendiary fire with difficulty determining points of origin

State dog thru Fire Dept.

We have access to ATF and CBI and local FD

fatalities
high $ loss
suspicious / arson known

we have applied for a grant for a canine

Contact the State Fire Marshal's Office

suspected incedianiary fires

called on most fires

any significant structure fire

Investigator reasonably believes accelerants were used or wishes to rule out the use of accelerants (negative
scene search)

Evidence of ignitable liquid involvement, high suspicion

The accelerant canine is part of local jurisdiction and we have to go through the local ATF agent for calling out.
Would use the canine more if we had a canine handler with our agency.

Investigator discretion

Contact the State Department of Justice Fire investigation Unit Area Special Agent

very high probability of positive find.

Fatality
High dollar loss
Investigator request

o won the dog and use him where there is no ignitable liquid inherently present such as garages, etc.

Fatality, severe injury, dollar loss exceeding $500000.00

Request is made through the dispatch center.

suspicion of illegal fire.

We have one in the detail

when the sniffer shows negative

Looks like arson

Approval by investigation officer incharge to page canine team

Agent must respond and evaluate the need

Any time the investigator feel that canine is required.

when deemed a large loss and potential accelerant used

as needed basis OT dependant and monitored closely

CALLED ON AN AS NEEDED BASIS

notify through County radio

Contact OFPC NY State

24 hour 7 day a week call out center

If I determine it is needed a request is made to the 911 communications center

We have 3 teams in our agency

Based on the need by the on scene investigator.

Rely on public sector input

 notify the state fire marshals office

All undetermined fires and all death/injury fires,

others if investigator is unsure

generally fatal fires

Contact NC SBI via FMO

Only if fire scene has suspected clues of arson

In cases where there are large pour patterns or multiple large patterns, we will use a K9 to get quick parameters

Major Case, Fire death.

If accelerent use is suspected

The on scene investigator has the descretion to call a canine unit as part of our Task Force

Any time the investigator needs the assistance.

It is up to the lead investigator.

If arson is suspected the local authority having jurisdiction is notified

Dollar loss over $30,000. Fire fighter injury or death. Fire fatality. Apparent multiple points of origin.

The on scene Investigator request the AK-9 through FD communications.

In house

STATE FIRE MARSHAL

When we determine the cause to be incendiary, along with the circumstances.

if the investigator feels a canine would be helpful, ATF is contacted who has the caninine in this area.

Rediculous

state division of fire safety

Required on all Incendiary Fires

Incidents where the use of ignitable liquid is suspected, fires where death or serious injury occured, multiple
arlarm fire scenes, fire bombings.

Fatal fires and suspect scenes when the investigator deems it necessary.

The investigator notifies the EMS dispatcher, who then notifies the neighboring jurisdiction. That jurisdiction then
pages the canine accelerant detection team.

gas detectors

The Division saw it on TV

Whenever an ignitable liquid accelerant is suspected

handler and detection K-9 retired due to medical problems. We used to use the team quite often when the
onscene investigator would determine the need.

High value loss or fatality/serious injury involved

An answer to this question is not required and 330 of 407 respondents chose not to answer.

64) Does your agency officially track the usage of accelerant (hydrocarbon) detection canine team in each investigation?

Yes (80) 33.3%

No (160) 66.7%

Total (240)
 An answer to this question is not required and 167 of 407 respondents chose not to answer.

65) Does your agency officially track the track positive/negative hit rate of accelerant (hydrocarbon) detection canine team in
each investigation in which a team is used?

Yes (64) 28.1%

No (164) 71.9%

Total (228)

An answer to this question is not required and 179 of 407 respondents chose not to answer.

66) Do your fire/explosion scene investigators have access to laboratory tests other than fire debris/ignitable liquid analysis (e.g.
flame spread testing, identification of unknown materials in debris, fire modeling, etc.)?

Yes (108) 42.9%

No (144) 57.1%

Total (252)

An answer to this question is not required and 155 of 407 respondents chose not to answer.

67) Do you think that you would benefit from having access to a national and/or international data base of certified accelerant
(hydrocarbon) detection canine teams?

Yes (185) 72.8%

No (69) 27.2%

Total (254)

An answer to this question is not required and 153 of 407 respondents chose not to answer.

68)
Does your agency have ready access to a fire debris analyst/scientist for consultation either with you at the fire scene or by
 telephone or Internet?

Yes (131) 50.4%

No (129) 49.6%

Total (260)

An answer to this question is not required and 147 of 407 respondents chose not to answer.

68a) If Yes, how often was their expertise called upon while you were processing fire scene in 2006?

1-5 (67) 61.5%

6-10 (17) 15.6%

11-15 (10) 9.2%

16-20 (4) 3.7%

21-30 (4) 3.7%

31-40 (2) 1.8%

41-50 (1) 0.9%

>50 (4) 3.7%

Total (109)

An answer to this question is not required and 298 of 407 respondents chose not to answer.

69) If No, would you want to have access to this type of expertise to assist you with your investigation?

Yes (144) 91.7%

No (13) 8.3%

Total (157)

An answer to this question is not required and 250 of 407 respondents chose not to answer.

69a) Rate the importance of having a fire debris analyst/scientist available for consultation while you are processing a scene. (1-7
where: 1 = Not at all, 7 = Very)
 1 (3) 2.1%

2 (5) 3.4%

3 (7) 4.8%

4 (18) 12.4%

5 (38) 26.2%

6 (32) 22.1%

7 (42) 29.0%

Total (145)

An answer to this question is not required and 262 of 407 respondents chose not to answer.

xi) Part J. Explosive Scene Specialists (Check an answer only on those questions which apply to you)

70) Indicate the number of explosive scenes analyzed/processed by all of the investigators at your physical location (check one):

1-50 (137) 87.3%

51-100 (13) 8.3%

101-250 (4) 2.5%

251-500 (1) 0.6%

501-750 (0) 0.0%

751-1000 (0) 0.0%

1001-2000 (0) 0.0%

>2000 (2) 1.3%

Total (157)

An answer to this question is not required and 250 of 407 respondents chose not to answer.

71) Have you had formal training in the investigation of bombing crime scenes?

Yes (152) 76.8%

 No (46) 23.2%

Total (198)

An answer to this question is not required and 209 of 407 respondents chose not to answer.

72) How important is formal training in the investigation of bombing crime scenes?
(1-7 where: 1 = Not at all, 7 = Very)

1 (2) 1.0%

2 (3) 1.6%

3 (2) 1.0%

4 (2) 1.0%

5 (9) 4.7%

6 (14) 7.3%

7 (159) 83.2%

Total (191)

An answer to this question is not required and 216 of 407 respondents chose not to answer.

73) What types of containers do you use in submitting explosion debris to a laboratory for examination?

Container / Percent of Time

73a) Clean Unused Paint Can

0% (3) 2.0%

1% to 20% (23) 15.5%

21% to 40% (13) 8.8%

41% to 60% (17) 11.5%

61% to 80% (36) 24.3%

81% to 100% (56) 37.8%

Total (148)
 An answer to this question is not required and 259 of 407 respondents chose not to answer.

73b) Glass Jars / Vials

0% (11) 11.5%

1% to 20% (47) 49.0%

21% to 40% (16) 16.7%

41% to 60% (7) 7.3%

61% to 80% (6) 6.2%

81% to 100% (9) 9.4%

Total (96)

An answer to this question is not required and 311 of 407 respondents chose not to answer.

73c) Nylon Bags

0% (10) 11.5%

1% to 20% (41) 47.1%

21% to 40% (15) 17.2%

41% to 60% (10) 11.5%

61% to 80% (3) 3.4%

81% to 100% (8) 9.2%

Total (87)

An answer to this question is not required and 320 of 407 respondents chose not to answer.

73d) Other

0% (8) 19.0%

1% to 20% (18) 42.9%

21% to 40% (5) 11.9%

 41% to 60% (4) 9.5%

61% to 80% (2) 4.8%

81% to 100% (5) 11.9%

Total (42)

An answer to this question is not required and 365 of 407 respondents chose not to answer.

73e) If you checked "Other" above, (please specify what container you used here):

paper bags/envelopes

paper bags

paper bags

anti static

PAPER BAG/BOX

paper bags

paper bag

Kpac

bags

paper bags/boxes

paper bags

choice of Lab

Paper containers, plastic zip lock bags (10-40 gal size)

clear plastic bag

brown paper bags

paper bags

PAPER BAG

Paper bags

paper

Sealable Plastic bags

paper bags

paper/cardboard

commercial plastic containers

cardboard box for larger items;

Kapak

paper bags or cardboard boxes

An answer to this question is not required and 381 of 407 respondents chose not to answer.
74) What type of equipment is essential to help you process bombing scenes:

Tape measures
Survey and/or GPS equipment
Flags

Camera, Video, Gloves, Paper Bags, Secured Explosive Boxes (For low ordered explosives)

Lots of people, rope, stakes, magnets, magnifying glass,

digital camera

gc-ms
sem-eds

ROBOTS, PROTECTIVE GEAR

Hand Tools
Power Tools
Heavy Equipment
Canine

sifting screens, shovels, rakes, brooms, wheel barrows, marker flags, tape measure, laser transit, gloves,
tweezers, cameras (digital still and video) lights, tents

Same as Above

UV source

Same as fire scenes

MANPOWER SHOVELS BROOMS POWER TOOLS AND HAND TOOLS

ANy thing available Usually call ATF

S/A as #60 and 61

NFPA standard

Small hand tools

Digital imaging equipment

Shovel, rake, trowel, brush/broom, camera, tape measure

hand tools, lighting, digital photo, equipment

lighting, camera equipment for documenting scene

Certified Bomb Tech for screening for secondary devices

Hand tools, safety equipment, lighting

Same as arson

All items listed for fire scenes with the addition of EOD suits and robots/X-ray machine

same as above

Metal Detector, Explosive swabs

marking flags, barrier tape, camera, video recorder, tape recorder, hand tools, generator, lighting, evidence
containers

Magnets, shovels, brooms, dust pans, bags, cans, bottles, camera, flash, flagging tape, evidence markers, mirrors,
safety equip;

same as fire scenes

Adequate tools and evidence collection equipment

swab kits, photographic equipment, screens for sifting

areial photography

Proper Safety Gear

Scene documentation equipment. Safety equipment. Evidence Collection supplies/equipment.

CGI, robotics, xray, photographic, protective clothing, equipment and training consistent with FEMA type 1 Bomb
 Squad classification

PPE, Hand Tools Lighting Equipment

sniffer and outside team resources

Shovel, rake, hand tools, lights, personnel

portable x-ray equipment, bomb suit, shovels, rakes, disrupter, energetic tools, metal detecter, assorted hand
tools and power tools.

Shovel, camera, tape measure, knife, large magnet, unused paint cans, gloves,

small flgs, hand tools, mapping equipment, photography equipment, laser range finders & thermal imaging camers

screen sifters, metal detectors,

Normal fire scene equipment is used.

rakes, sifting screens, portable tables, shovels, disposable forceps and tyvek suits, camera decomtamintion station

MY EYES.

Same as I would use at any fire scene

Gloves, packing equipment

sifting screens, quality hand tools, sterile evidence containers.

qualified man power

A method of securing and marking the scene

knowledge

basic evidence collection materials

See NFPA 921

shovels, clean shoes and cloths, de-con equipment. sifting screens, gloves.

same as fire scene

Standard Tools, Markers, Magnets, Metal Detectors, Small Hand Tools, Brushes, Photographic - Videographic -
Written and Artistic Documentation.

Evidence collection equipment, photography. debris sifting equipment, explosive detection dogs

more training, more money

gloves , containers, boots, misc itmes

Disposable gloves, unlined cans,shovel.razor knife, hatchet, small tools, camera

Lighting, wire screen sifters, personnel trained in post blast investigations.

buckets, shifters, rakes, lights, camera

Eyes, shovel

qualified personnel

photography equipment, measuring devices, video equipment

the same as fire's

camera
evidence containers
tools (uncontaminated)

handtools, camera

In addition to equipment listed in question #61, sifting screens

Too numerous to provide

Standard evidence collection equipment

Cans, plastic evidence bags, flags, string, nitrile gloves, safety glasses, digital cameras, Total Station GPS

K-9, misc. handtools, protective equipment to include gloves, eye protection, boots, and scuba equipment for
underwater investigation.

any

digital camera and various tools used in general evidence collection;

laser range finders, instruments for collection, disposable brooms-dust pans, sifting screens
 same as above

same as fire debris with more evidence collection and a measuring wheel.

New (uncontaminated) supplies

Lights, flashlight, camera, shovel, broom, pry bar, hand tools,

no idea

Hand tools and sometimes heavy equipment

gps,

PPE - Uncontaminated clothing,

An answer to this question is not required and 323 of 407 respondents chose not to answer.

75) What type of equipment is desirable to help you process bombing scenes:

Better evidence preservation system

Explosive Detection Instruments

portable xray machine

SAME AS ABOVE

Portable Chemical ID

same as fire scenes

MANPOWER - SHOVELS BROOMS & HANDTOOLS

Digital imaging equipment

Power tools

SAA

Mobile command center

same as above

Same as above

same as above

Hand tools, screens, wheel barrows, pry bars, hammer, ladders, magnifying glass, microscope, explosive residue
test kit,

Another list that is too long for this venue.

Same as Above

Air sampling device, more personnel, K-9

portable x-ray equipment, bomb suit, shovels, rakes, disrupter, energetic tools, metal detecter, assorted hand
tools and power tools

Same

Unknown

Same as above

Chemical identifiers

elevation equipment

Bomb Componet Blanket

basic evidence collection materials

State of the Art - Handheld Explosives Residue Detection Equipment

 Heavy construction machinery

odor detection equipment

Disposable gloves, unlined cans,shovel.razor knife, hatchet, small tools, camera

meters, computers

good hand tools, total station

UV illumination
field test instrument

handrools camera

residue detection

Total Station GPS System, Laser Range Finders, Blast Modeling Software

any

total station or like equipment.

same as above

sams as fire debris

no idea

Hand tools and sometimes heavy equipment

accident reconstruction equipment for mapping debris position in reference to the seat of the blast

Blast modeling software, metal detectors

An answer to this question is not required and 363 of 407 respondents chose not to answer.

76) Do you currently utilize the equipment you listed?

Yes (75) 85.2%

No (13) 14.8%

Total (88)

An answer to this question is not required and 319 of 407 respondents chose not to answer.

77) Are there other types of training/classes that you feel would be helpful to you in order to do your job?

Better access to continuing education.

Advanced Post Blast; Crime Scene Technician

Chemistry

Hands-on processing of explosion scenes to "get the feel" of looking for clues

POST BOMB INVESTIGATION

EOD training
 Required annual update training on current events and cituations that private invesytigators may be confronted
with on a day-to-day basis.

Post Blast School

Digital imaging equipment

hands on evidence collection, scene excavation

Any as we have none at this time.

Pattern (high/low order) Recognition, evidence preservation

Advanced scene documentation equipment

Any and all Training

always. You can never have enought of it.

Explosives/post blast

yes

any and all

continuation of post blast re-construction

Formal post blast schools, blast analysis, a list of essential equipment to process the scenes.

BOMB TRAINING.

Advanced training in scene investigations

More Post Blast Investigation Classes and follow-up courses to keep people proficient

Any and all training and information is allways helpfull

High profile fire scene examinations, scene control, WMD scene examinations

Explosive detection courses

on the job training with federal agencies

EOD training made available to fire service personel

land survey classes using total stations to map and analize debris patterns

higher level/more advanced levels of training, there is a lot of basic training but little advanced

More post blast courses

Post blast instructors course

A class that focused on case studies of complex fire scenes would be helpful

Advance field evidence collection

any post blast.

40 hour post-blast investigation course taught at local level;

more intensive on-scene training

Anti-terrorisim training

this is not my area of responsibility

An answer to this question is not required and 369 of 407 respondents chose not to answer.

78) Does your agency have, or have access to an explosives detection canine team to assist in investigations?

Don't know (20) 11.3%

No (43) 24.3%

Yes (114) 64.4%

 Total (177)

An answer to this question is not required and 230 of 407 respondents chose not to answer.

79) If yes, what percentage of the investigations would utilize such a team?

1-20% (66) 53.7%

21-40% (16) 13.0%

41-60% (10) 8.1%

61-80% (11) 8.9%

81-100% (20) 16.3%

Total (123)

An answer to this question is not required and 284 of 407 respondents chose not to answer.

80) Does your agency have a specific criteria used calling out the services of an explosive detection canine team?

Yes (61) 37.2%

No (103) 62.8%

Total (164)

An answer to this question is not required and 243 of 407 respondents chose not to answer.

80a) If "Yes", (please briefly describe the criteria used here):

Dependent on size of crime scene or area to be searched.

Our agency K-9 division refuses to comply with the ATF/FBI K-9 Explosive Detection Canine Certificiation program
and only uses NAPWDA. Therefore, we use another agency.

Call State Fire Marshal

state police dispatcher off hours and Lt incharge of the state police bomb squad

FOLLOWING THE DEPARTMENTS GUIDELINES THAT HAVE THE CANINE

EDU supervisor or duty officer request EDU K9

AT OUR REQUEST
 IC OR Inv Call along with PD dective

Any scene that seems suspecious

Contact local Bomb Squad and CBI & ATF

Investigator discretion

very high probability of positve results.

Same as above

Suspicious packages, deaths/serious injuries where possibility exists of a secondary device.

Request is made through the dispatch center.

suspicion of an accelerant present at scene.

when unidentified material cannot be found

Notify State Police

Must be approved by USAF Base Commander @ Cannon AFB after request is submitted through local channels of
command, Chief - City Manager - Mayor - then to AFB

At the discretion of the Bomb Squad Commander

Through County radio

24 hour 7 day a week call out center

Suscipous Packages without threat

Bombing incident where the threat of a secondary device exists.

Go through the Bomb Squad Sergeant.

To conduct protective and dignitary sweeps, on bomb threats or when requested by bomb technicians.

When necessary - call ATF for K-9

Supervisor calls Bomb Squad commandar and he calls k-9.

If explosives are suspected

when ever the lead investigator or Bomb Commander calls them out

determined by Police Department

Request with proper guidelines

If arson is suspected the local authority having jurisdiction is notified

Used for sweep before significant events. Threats at certain location.

The request is made through FD communications

request of on scene commander

fer secondary checks, never wothout a tech

Called by the bomb squad

Bomb Squad Commander activates team when needed.

large event's

when requested by bomb tech

supervisor approval

Discretion of bomb squad commander

phone call

vip visits and when a technician requests it

protocol set by the fbi, atf, nabscab and the ipwda

Bomb threats, dignitary protection and special event details. Upon the request of bomb technicians

An answer to this question is not required and 360 of 407 respondents chose not to answer.
81) Does your agency officially track the usage of explosive detection canine team in each investigation?

Yes (59) 37.1%

No (100) 62.9%

Total (159)

An answer to this question is not required and 248 of 407 respondents chose not to answer.

82) Does your agency officially track the track positive/negative hit rate of explosive detection canine team in each investigation
in which a team is used?

Yes (48) 30.6%

No (109) 69.4%

Total (157)

An answer to this question is not required and 250 of 407 respondents chose not to answer.

83) Do you think that you would benefit from having access to a national and/or international data base of certified explosive
detection canine teams?

Yes (115) 69.3%

No (51) 30.7%

Total (166)

An answer to this question is not required and 241 of 407 respondents chose not to answer.

84) Does your agency have ready access to an explosives analyst/scientist for consultation either with you at the bombing scene
or by telephone or Internet?

Yes (80) 47.6%

 No (88) 52.4%

Total (168)

An answer to this question is not required and 239 of 407 respondents chose not to answer.

85) If Yes, how often was their expertise called upon while you were processing bombing scenes in 2006?

1-5 (52) 76.5%

6-10 (9) 13.2%

11-15 (1) 1.5%

16-20 (2) 2.9%

21-30 (3) 4.4%

31-40 (0) 0.0%

41-50 (0) 0.0%

>50 (1) 1.5%

Total (68)

An answer to this question is not required and 339 of 407 respondents chose not to answer.

86) If No, would you want to have access to this type of expertise to assist you with your investigation?

Yes (98) 96.1%

No (4) 3.9%

Total (102)

An answer to this question is not required and 305 of 407 respondents chose not to answer.

87) Rate the importance of having an explosives analyst/scientist available for consultation while you are processing a scene: (1-
7 where: 1 = Not at all, 7 = Very)
 1 (4) 2.4%

2 (4) 2.4%

3 (7) 4.2%

4 (16) 9.6%

5 (24) 14.5%

6 (34) 20.5%

7 (77) 46.4%

Total (166)

An answer to this question is not required and 241 of 407 respondents chose not to answer.

88) In 2006 how often did you respond to scenes which contained the following:

88a) Intact Explosives

0 (54) 40.0%

1 to 20 (68) 50.4%

21 to 50 (9) 6.7%

51 to 100 (2) 1.5%

101 to 150 (2) 1.5%

151 to 200 (0) 0.0%

>200 (0) 0.0%

Total (135)

An answer to this question is not required and 272 of 407 respondents chose not to answer.

88b) Intact IED

0 (68) 51.9%

1 to 20 (53) 40.5%

21 to 50 (6) 4.6%

51 to 100 (2) 1.5%

101 to 150 (1) 0.8%

 151 to 200 (1) 0.8%

>200 (0) 0.0%

Total (131)

An answer to this question is not required and 276 of 407 respondents chose not to answer.

88c) Post Blast Explosives

0 (55) 39.3%

1 to 20 (79) 56.4%

21 to 50 (6) 4.3%

51 to 100 (0) 0.0%

101 to 150 (0) 0.0%

151 to 200 (0) 0.0%

>200 (0) 0.0%

Total (140)

An answer to this question is not required and 267 of 407 respondents chose not to answer.

88d) Post Blast IED

0 (68) 52.3%

1 to 20 (56) 43.1%

21 to 50 (4) 3.1%

51 to 100 (2) 1.5%

101 to 150 (0) 0.0%

151 to 200 (0) 0.0%

>200 (0) 0.0%

Total (130)

An answer to this question is not required and 277 of 407 respondents chose not to answer.
88e) Intact Incendiary Device

0 (49) 35.0%

1 to 20 (85) 60.7%

21 to 50 (4) 2.9%

51 to 100 (1) 0.7%

101 to 150 (0) 0.0%

151 to 200 (0) 0.0%

>200 (1) 0.7%

Total (140)

An answer to this question is not required and 267 of 407 respondents chose not to answer.

88f) Post Reaction Incendiary Device

0 (54) 39.4%

1 to 20 (73) 53.3%

21 to 50 (6) 4.4%

51 to 100 (1) 0.7%

101 to 150 (1) 0.7%

151 to 200 (0) 0.0%

>200 (2) 1.5%

Total (137)

An answer to this question is not required and 270 of 407 respondents chose not to answer.

89) In 2006, of the scenes in which it was necessary to "render safe" a device, please indicate the method and times employed:

89a) Hands on

0 (44) 54.3%

1 to 20 (35) 43.2%

21 to 50 (2) 2.5%
 51 to 100 (0) 0.0%

101 to 150 (0) 0.0%

151 to 200 (0) 0.0%

>200 (0) 0.0%

Total (81)

An answer to this question is not required and 326 of 407 respondents chose not to answer.

89b) Remote Cutter

0 (54) 75.0%

1 to 20 (16) 22.2%

21 to 50 (1) 1.4%

51 to 100 (1) 1.4%

101 to 150 (0) 0.0%

151 to 200 (0) 0.0%

>200 (0) 0.0%

Total (72)

An answer to this question is not required and 335 of 407 respondents chose not to answer.

89c) Disrupter

0 (26) 28.3%

1 to 20 (43) 46.7%

21 to 50 (12) 13.0%

51 to 100 (8) 8.7%

101 to 150 (2) 2.2%

151 to 200 (0) 0.0%

>200 (1) 1.1%

Total (92)

An answer to this question is not required and 315 of 407 respondents chose not to answer.
89d) Other

0 (26) 57.8%

1 to 20 (15) 33.3%

21 to 50 (2) 4.4%

51 to 100 (2) 4.4%

101 to 150 (0) 0.0%

151 to 200 (0) 0.0%

>200 (0) 0.0%

Total (45)

An answer to this question is not required and 362 of 407 respondents chose not to answer.

89e) If you checked "Other" above, (please specify what container you used here):

ROBOT

Water cannon

MWB, Hydrajet

counter charge

N/A

robot

Burning in place

Mineral water bottle

Rigging procedures

MWB

MWB, Hydra Jet

disruptor

robot manipulation

counter charge

counter charge

robot

water cannon

robot

An answer to this question is not required and 389 of 407 respondents chose not to answer.
xii) Part K. Laboratory Research Needs (Check an answer only on those questions which apply to you)

90) What major breakthrough in the area of ignitable liquid or explosives analysis would have the most impact on the area of
forensic science? (Think big the sky is the limit)

A machine that is portable, cost effective and produces reliable ignitable fluid results from samples while at the
scene. (you said the sky is the limit)

Field usable (and hand-held size) GC/MSD

Good matching software that could match unknowns to a library std like we do with drug standards.
Also to be able to id an ignitable to a company like they do with oil spills etc.

100% accuracy in identifying significant residues and excluding all backgorund interferences

easily detectable taggants in flammable products

Library Searchable Database

manufacter identification markers in products.

The ability to identify the source of ignitable used in a fire scene.

SOFTWARE TO HELP INTERPRET TICS

Pyrolysis library

ability to distinguish source of individual compounds (acetone from decomposition or ignitable liquid?; nitrate form
black powder or fertilizer?).

Acess to a database of published research papers (similar to the FBI library- but more conprehensive) without
having to pay for a membership or a particular artical.

isotopes

for explosives, portable instrumentation that could positively identified post blast explosive residue.

DETECTION OF WHITE GAS

More training opportunities

Tagging of gasoline samples

I am not sure

low cost IMS instruments bought by Feds and distributed to agencies

Being able to make a statistical comparison to compare how well two samples "match".
Applying supercritical fluid extraction
Ion Cyclotron MS for explosives.
A single comrehensive analytical technique for conclusive ID of either organic or inorganic explosives (affordable
technology)

Addressing some of the beliefs that you can track ignitable liquids through a scene from your footwear, or dog.

Comparing fire debris samples and comparing to known gasoline sources to determine if it came from same
container, supplier, vendor, service station etc.

Portable analysis at the scene

Portable (on-scene) GCMS

Video documentation of the collection and analysis process to provide a jury with real-time information concerning
the information and conditions that were available at the time of the collectyion and/or processing.

A kit to conduct initial testing on scene.

 To identify if an starting fluid or similar flammable liquid was used to start a fire.

Make the lab as capable as the dog.

Matching a specific gasoline to a specific brand/gas station.

Matching a specific sample at the scene to residue on clothing.
Degree of decay of ignitable liquid - i.e., this residue was laid out x hours prior to collection.

Perfected accelerant detectors with air proof seal evidence containers

dna identification on containers, incendiary devices

Inexpensive, indestructible, hand held analyzer, for the instantaneous fire scene identification of suspected
ignitables and explosives, that was courtroom bullet-proof.

If there was a way to better distinguish the specific types of agents present in the samples, to clear up confusion
in court proceedings

The field of fire debris analysis is settled! The techniques we have are sensitive enough and specific enough. If a
lab can do E1412, E1386 and E1618, that is sufficient. Too much treasure is wasted on SPME, MSMS and other
intereasting but forencsically useless techniques.

Training in explosives, IED IID, and post blast evaluation

A statisitcal probability in the identification of an ignitable liquid.

on scene analysis

Differentiation between natural turpentine residue in wood fire debris and turpentine as an accelerant/ignitable
liquid.

RSP of HME's or PBE's. Not spray misting but actual RSP methods.

A reliable field unit that will give the investigator correct results quickly.

I have no idea, the ISP lab never gets us what we need anyway.

Portable equipment for on scene preliminary determinations

ALS (Alternative Light Sources), Portable Carbon Counting Technologies that will indicate the approximate total
burn time and temperature.

hand-held mass spec or explosive analysis devices

Portable/battery operated devices that are pre-calibrated and can be used at the scene.

Process for positive identification of ignitable liquids that can be used in the field without laboratory analysis

not enough knowledge to answer question

Have a central labratory when submitting fire debris where an accelerant detection canine was utilized. As a
handler I find it difficult when different agencies are utilizing different labratories. Even though there is a standard
in place it is not always followed by different labratories.

Field GC

Use of alternate light sources to find where the residue is at the fire scene.

low-cost and extremely reliable portable detection equipment able to identify/classify

any

GC-MS-MS

safer solvents

hand held instrument, court room acceptable, detection of results on scene, printable, documentable--- easy to
zero out- documented- and free.

more definative explinations of the liquids found within the samples, the ability to be able to track the ignitable
liquid to it source such as seperate chemical markers added to each manufactures gasoline and hydrocarbon
products

An answer to this question is not required and 352 of 407 respondents chose not to answer.
91) Rank the following research areas in terms of how likely you believe they will have a significant impact on ignitable liquid or
explosive analysis? (1-7 where: 1 = not likely, 3 is possible, 5 is probable, and 7 is extremely likely)

91a) New Analytical Methods

1 (3) 2.8%

2 (7) 6.5%

3 (11) 10.2%

4 (11) 10.2%

5 (31) 28.7%

6 (12) 11.1%

7 (33) 30.6%

Total (108)

An answer to this question is not required and 299 of 407 respondents chose not to answer.

91b) New and Improved Databases

1 (1) 0.9%

2 (3) 2.7%

3 (8) 7.2%

4 (10) 9.0%

5 (26) 23.4%

6 (18) 16.2%

7 (45) 40.5%

Total (111)

An answer to this question is not required and 296 of 407 respondents chose not to answer.

91c) New Data Analysis Methodology

1 (1) 0.9%

2 (3) 2.8%
 3 (17) 15.7%

4 (14) 13.0%

5 (30) 27.8%

6 (8) 7.4%

7 (35) 32.4%

Total (108)

An answer to this question is not required and 299 of 407 respondents chose not to answer.

91d) New Standards

1 (4) 3.7%

2 (7) 6.5%

3 (19) 17.6%

4 (21) 19.4%

5 (26) 24.1%

6 (5) 4.6%

7 (26) 24.1%

Total (108)

An answer to this question is not required and 299 of 407 respondents chose not to answer.

91e) Sample archiving practice/method

1 (5) 4.9%

2 (8) 7.8%

3 (17) 16.5%

4 (13) 12.6%

5 (20) 19.4%

6 (9) 8.7%

7 (31) 30.1%

Total (103)
 An answer to this question is not required and 304 of 407 respondents chose not to answer.

92) Is additional research required in the area of explosives disposal/disruption?

Yes (107) 93.0%

No (8) 7.0%

Total (115)

An answer to this question is not required and 292 of 407 respondents chose not to answer.

93) In your opinion, which of the following issues would provide the most significant improvement on the efficiency of useful
sample collection at the fire and explosive scenes? (please select only one)

New field instrumentation/sensors to

(61) 36.3%
aid in sample selection

Training of sample collection

(55) 32.7%
personnel

Development of standard sampling

(10) 6.0%
plans

Implementation of data quality

(2) 1.2%
objectives for sampling

Improved real-time coordination

between laboratory and field (40) 23.8%
personnel

Total (168)

An answer to this question is not required and 239 of 407 respondents chose not to answer.

94) Please rank the importance of an analyst's knowledge of the fate and transport of explosives in the environment as related to
forensic casework? (1-7 where: 1 is not at all, 3 is fairly important, 5 is very important, 7 is urgent)

1 (2) 1.6%

2 (5) 4.1%

3 (7) 5.7%

4 (11) 9.0%

5 (32) 26.2%

6 (20) 16.4%
 7 (45) 36.9%

Total (122)

An answer to this question is not required and 285 of 407 respondents chose not to answer.

95) How important is it to push for lower detection limits in the laboratory analysis of explosives? (1-7 where: 1 is not at all, 3 is
fairly important, 5 is very important, 7 is urgent)

1 (2) 1.9%

2 (6) 5.6%

3 (10) 9.3%

4 (20) 18.7%

5 (28) 26.2%

6 (15) 14.0%

7 (26) 24.3%

Total (107)

An answer to this question is not required and 300 of 407 respondents chose not to answer.

96) In fifteen words or fewer, what is the biggest challenge that you face as a fire or explosion analyst?

Turn-around time - useful data for the investigator to use in a timely manner

Obtaining training and education at a professional level that is affordable for an agency with budget limitations.

Detecting extremely low amounts of an ignitable liquid in a case and its likely-hood that it was intentionally used
as an accelerant.

Time

lack of resources and training

Cooperation and Communication between agencies

Making sure appropriate comparison samples are collected at the scene

not adequate training in analysis procedures

Sample Identification

Pyrolysis product interference

need more training and equipment

Determining what is found in the can. Whether we are looking at something that is placed there as an accelerant,
or if that pattern is originating from the material itself, in the can.

finding time to develop and maintain skills

limited workers experienced to analyze cases.

 being able to postivel identified trace post blast residue

Lack of funding for good equipment/training

Striving for perfections to be 100% correct.

Coordinating the case with the collecting agency.

SAFETY, THE COLLECTION OF EVIDENCE, AND COOPERATION FROM THE LAB PEOPLE, EDUCATION OF
PROSECUTORS

Acquiring the latest Ignitable liquid standards

Getting casework done in a timely way.

Explaining why our comparison capabilities between two samples is not as exact as the DNA analysts

Fighting the defense of "Didn't follow 921 to the letter so he/she is wrong."

To be capable of interpreting the patterns and pin point the location of proper samples

funding for research

Gaining access to necessary traing for fire and EOD.

Getting funding to properly man and equipt MAnpower with the right tools

Court attacks from other fire investigators that are not applying NFPA 921 principles or practices.

Proving our case after a public/state investigator has conducted an inadequate investigation prior to ours.

The scene tampering of a municipality and the practices imposed to process a scene.

Getting proper funding from the muncipal government

Collaborating with fire investigators for expert analysis of fire debris for cause and origin determination

Getting the cases into an over crowded court system and not plea deals.

turn around time from evidence submittal until results of testing are returned.

That you do not get to focused on what you see and hear

personnel and time managmen

Figuring out how the fire or explosion took place is the biggest.

Court cases seem to be the biggest challenge. You can pay anyone to say anything these days. A standard for
defense experts would be welcome.

getting the scene secured, collecting the proper evidence.

Use of NFPA 921 to defeat by technicality

new legal issues

Determining electrical cause or result of a fire.

Lack of desire to be objective in collecting data.

Getting to the scene as quickly as possible - cutting down on the time between the incident and the time the
incident is assigned by claims personnel to investigator.

Early access to the scene before evidence is destroyed

being able to

Dealing with hack fire investigators with no real scientific training.

resources- budget, training, personnal

getting the local politicians to take it serious

Lawyers

ELIMINATION OF CIGARETTES AS POSSIBLE IGNITION SOURCE

Getting samples evaluated on a timely manor.

Obtaining the correct location for a sample

not enough training

For peers to evaulate new research with an open mind.

Higher national standards placed on bomb squads making it harder for smaller squads to keep up or survive.

Getting the Department to support you even though there is are only a few call for service.
 positively identifiying TATP and other peroxide based explosives

Getting non experts to listen and understand.

As a fire analyst my biggest challenge is being able to respond timely to a fire scene

The need to stay a head of the bomb makers and their capabilities to make HME.

Lack of understanding by prosecutors what fire scene investigators do.

safety

Coordination between me in the private sector and those in the goverment or public sector. Standardization of my
datapoints and those of the many different agencies.

scene contamination before inv. arrival and proper collection techniques

Obtaining data from samples that have not been contaminated by poor handling

not enough training time or money

The frequency of changes in standards and laws regarding how we collect samples.

Investigators standpoint is the LABRATORY.

The preservation and security of the scene until the Investigator arrives to the scene.

Getting reports out before the next fire.

AS A FULL TIME FIREFIGHTER, THE PROBLEM IS OVERTIME TO DO A THROUGH JOB

Information sharing

Keeping current with proper investigation methods

Managing the time required to perform a thorough examination with the resources at hand

Dealing with people and ORGANIZATIONS who do not understand this business, yet they feel as if they have some
right to stick their nose into the business.

Cost of the materials and training

The abiolity to allocate of time to train.

pip bomb explosion's

Lack of sufficient manpower to sustain an operation.

ever changing world of petrochemical formulations

Having the right equipment to conduct the proper analysis

An answer to this question is not required and 325 of 407 respondents chose not to answer.

97) What area(s) of your investigation analysis is(are) most frequently challenged in court? List up to 3 please.

97a) Area 1

professional qualifications

Quality of analysis

Who put it there.

In Service Training

Significance of findings

results
 Can you tell how long the ig liq has been there?

origin of sample

comparing similar ignitable liquids

fire debris

potential for contamination by investigators/analysts

My Knowledge of NFPA 921

GETTING PROSECUTOR TO TAKE A CHANCE

COC

RT and Mass spec of accumulated target compounds in GC/MS

Methodology

Determination

Credibility

Documentation

CFI and CFEI Certifications

Expertise

Why isn't my scene analysis the same as municipality.

Skill Set

Knowledge

Suspect identification

Origin and cause

training

Conclusions

possible sample contamination by the FD

My lack of college degree

Application of Codes & Standards

evidence collection

Credentials

Cause determination

sample identification on lab analysis sheet

Bias for my client

Voir Dire

ELIOMINATION OF CIGARETTES AS IGNITION SOURCE

testimoney

Type of explosive

evidence collection

NFPA 921

objectivity

Very rarely challenged

Chain of custody

Origin opinion

bomb scene investigation

Motive

Background

Elimination of other potential causes

Documentation
 How evidence is collected

interpretation of results

Contamination

electrical faults

Canine detection

origin & cause classification

Record keeping

Investigation process

cause

collection

methodology

collection of evidence

general sessions court

chain of evidence

Collection and Storage

Expertise

pyrolysis samples

Intent

An answer to this question is not required and 338 of 407 respondents chose not to answer.

97b) Area 2

documentation of evidence locations (where found)

chain of custody

Certifications

Exclusion of interferences

chain of custody

relevancy of results

quantifying ignitable liquids

gunshot residue analysis

could the IL "belong" on the substrate

PUTTING SUSPECT AT THE SCENE

Subjectivity of Pattern Interpretation

Responsible party

Report

NFPA 921

Education

Accidental fires vs. arson fires

Spoliation.

Training

technique
 suspect identification/invov

guilt of the accused

Methodology

Area of Expertise

report writing

Sense of smell

Evidence collection methods

contamination/spoliation

Personal qualifications

evidence

explosive potential of particular devices

Methodology

thoroughness

contamination

Cause opinion

explosive knowledge

Actual guilt of suspect

method

Specific item[s] involved

My Background

significance of pattern analysis

alternative hypotheses

Chain of custody

Fire scene examination

Investigator's creditability

credentials

area of origin

chain of custody

photograpgy

TrainingExperience

Source of IL

Qualification - Explosive cases rarely go to trial

An answer to this question is not required and 356 of 407 respondents chose not to answer.

97c) Area 3

opinion

Evidence Submission/Packaging

Contamination issues

interpretation of results

connecting lab results with the defendant

 explosives analysis

why did the dog alert to the sample yet you called it negative?

CONNECTION BETWEEN SUSPECT AND EVIDENCE

Alternative Hypotheses

LAb results

Contract requirements

Engineers.

qualifications (very rare)

Report Writing

evidence storage

Prosecutoers who are stupid

Cause elimination

expertise in field/accepted testing

samples

Experience

training in explosives

education

determination of conclusion

evidence

initial on scene investigation

An answer to this question is not required and 382 of 407 respondents chose not to answer.

98) How significant are the Daubert/Frye standards when it comes to introducing a new methodology into your laboratory
practice, and if this is an issue, can you suggest a method for overcoming the challenge? (1-7 where: 1 is not at all, 3 is fairly
important, 5 is very important, 7 is urgent)

1 (11) 10.3%

2 (6) 5.6%

3 (9) 8.4%

4 (14) 13.1%

5 (28) 26.2%

6 (16) 15.0%

7 (23) 21.5%

Total (107)

An answer to this question is not required and 300 of 407 respondents chose not to answer.

99) Would a "new practices" review panel comprised of academic and practicing forensic chemists facilitate the implementation of
 new methodologies and their importance in court? (Yes, No, Possibly)

Yes (48) 38.1%

No (7) 5.6%

Possibly (71) 56.3%

Total (126)

An answer to this question is not required and 281 of 407 respondents chose not to answer.

100) Are you or the analysts in your laboratory interested in collaborating with university researchers to provide an avenue for
implementing new analytical and field methodologies? (Yes, No, Possibly)

Yes (35) 30.2%

No (27) 23.3%

Possibly (54) 46.6%

Total (116)

An answer to this question is not required and 291 of 407 respondents chose not to answer.
Questionnaire

Because this survey is posted in a variety of locations, we ask that you fill and submit only one version. We also ask that you
only complete answers to those questions that pertain to you. If a question does not pertain to the work you performed in 2006,
please leave it blank.

1) Part A. Demographics and General Questions

Indicate the type of work you do and assign a percentage of time in that activity (if you perform in multiple areas please
indicate):

Job Title / Percentage of Time

Fire Debris Analyst

-- Choose one --

Explosive Debris Analyst

-- Choose one --

Fire Scene Investigation

-- Choose one --

Explosives (Post Blast) Investigation

-- Choose one --

Supervisor/Administrator for either Laboratory Analyses or Scene Investigations

-- Choose one --

Academic/Teaching
-- Choose one --

2) Indicate the type of organization for which you work (check one):
-- Choose one --

3) List the number of all employees (including you) in your laboratory or unit involved in fire
debris or explosives analysis, scene investigation, and/or reporting for each of the following
categories:

Position / Number of Employees

Analyst /Scientist

Lab. Supervisor/Manager

Scene Investigator/EOD

Scene/EOD Supervisor

4) Years of Experience in this field / Number of employees

0-2

2-5

5-10

10-15

20-25

25-30
 >30

5) List the number of all employees (including you) in your laboratory or unit involved in fire
debris or explosives analysis, scene investigation, and/or reporting for each of the following
categories:

Highest Education attained by each employee / Number of Employees:

High School

2-3 year degree / diploma

4 year BA or BS or BSc

Master's degree

PhD

6) Indicate the number of times you testified in court in 2006

-- Choose one --

Part B. Professional Development (Check an answer only on those questions which apply to you)

7) Which, if any, of the following professional development activities will your laboratory or agency pay (in part or in full) for
employees to attend (check all that apply):

local/state/regional professional association meeting

conference, seminar, or symposium held within the state/province

conference, seminar, or symposium held outside the state/province

conference, seminar, or symposium held outside home country

seminar or course held off-site

seminar or course held on-site

classes held a local university

on-line classes from an accredited university

employer does not offer to pay for courses, seminars, or for conference/symposium attendance

8) On average, in 2006 what level of funding support did your agency provide for your continuing
education/training/professional development? (This includes tuition, registration, travel, lodging, meals, and incidentals.)

-- Choose one --

9) Rate your level of interest (along the following scale) in attending college level courses if: (1-7 where: 1 = Never, 4 =
Likely, 7 = Absolutely)

You had to pay 100% of the costs

-- Choose one --

You had to pay 75% of the costs

-- Choose one --

You had to pay 50% of the costs

-- Choose one --

You had to pay 25% of the costs

-- Choose one --

You had to pay 0% of the costs

-- Choose one --
10) Rate how interested you would be in taking each of the following types of continuing education courses: (1-7 where: 1 =
Never, 4 = Likely, 7 = Absolutely)

EOD Range Time (Training with EOD personnel)

Fire Scene Evidence Collection, Preservation, and Packaging

Explosives Scene Collection, Preservation, and Packaging

Fire Dynamics (including Chemistry and Physics)

Petroleum Refining Processes

Ignitable Liquid Classification System

Electrical circuitry and fire

Testifying as an Expert Witness

Explosives Manufacturing Processes

IED recognition and construction

Computer Fire Modeling

Gas Chromatography

Mass Spectral Interpretation

Raman Spectrosopy for Explosives

X-Ray Analysis Techniques (Diffraction, Fluorescence, Energy Dispersive)

Ion Chromatography

Capillary Electrophoresis

Fourier Transform Infrared Spectroscopy

Advanced Organic Chemistry for Fire Debris Analysis

Advanced Topics in the Chemistry of Organic Explosives

Advanced Topics in the Chemistry of Inorganic Explosives

Forensic Fire Scene Examination

Forensic Explosive Scene Examination

Communication and Cooperation between Investigators and Analysts in Fire Investigations

Communication and Cooperation between Investigators and Analysts in Explosion Investigation

11) List a maximum of 3 other training / classes that you feel would be helpful to you in order to do your job better?

12) Rank how important would each of the following resources be to you? (1-7 where: 1 = Not at all, 7 = Very Important)

Comprehensive Listing of people working in the field (private and government)

Creation of a secure Internet link for E-mail and information exchange between professionals in the field of explosives
and fire debris analysis

Establishment of a collection of sample laboratory reports

Creation of a glossary of analytical, explosives, and fire debris-related technology

Creation of information templates for evidence submission

 Establishment of a collection of methods and protocols for analytical techniques

Establishment of databases of reference materials for analytical techniques

Creation of a national database for tracking bombing matters

Creation of a national database for tracking arson matters

Establishment of a national resource database (for lab equipment, expertise, etc.)

Establishment of a national explosives formulation database

Creation of a bulletin board for communication between explosives analysts

Creation of a bulletin board for communication between fire debris

Creation of an library of manufacturers' literature

Database of explosives analyst training manuals and materials

Information center for inter-agency training exercises

13) Are you given time and resources to perform research in your field(s)?

Yes

No

14) If so, approximately how many hours in 2006?

Fire debris analysis

Explosives Analysis

Fire Scenes

Explosive Scenes

15) Rate each of the following statements as they apply to your laboratory or to you using the scale given below: (1-7 where:
1 = Not at all, 7 = Very)

How sufficient are the explosives and fire debris publications provided by your laboratory?

How interested would your laboratory be in receiving a library of ignitable liquid standards on a regular basis?

How interested would your laboratory be in receiving a library of pyrolysis standards on a regular basis?

How important do you feel it would be to have national standards for report writing?

How important would it be to have a specific protocol for wording of both positive and negative samples?

How important would it be to have a national database for chromatographic data for ignitable liquids?

How important would it be to have a national source for ignitable liquid standards?

How interested are you in participating in the fire and explosives debris analysis technical working group?

Part C. Fire Debris Analysis Case Work (Check an answer only on those questions which apply to you)

Indicate the total number of fire debris samples analyzed/processed in 2006 by all the analysts within your
-- Choose one
agency (check one):
--

Indicate the total number of ignitable liquid samples analyzed/processed in 2006 by all the analysts within
-- Choose one
your agency (check one):
--

Part D. Fire Debris Analytical Methods (Check an answer only on those questions which apply to you)

17) Extraction method routinely used for fire debris analysis (check one):
 activated charcoal (passive headspace sampling - includes strips, tea bags, wires, and ribbons)

activated charcoal (dynamic headspace sampling)

TENAX (passive or dynamic headspace sampling)

SPME (please indicate the phase used):

Other absorbent:

If you checked "SPME" (Please indicate the phase used here):

If you checked "Other absorbent" above, (please specify which one used here):

18) Indicate which eluting solvent used for extracts from fire debris:

no eluting solvent used (e.g. thermal desorption or SPME)

carbon disulfide (CS2)

dichloromethane (CH2Cl2)

diethyl ether

pentane

Other (specify):

If you checked "Other" above (please specify which one was used here):

19) Internal standard routinely added to fire debris?

Yes

No

If "Yes", (please specify which compound(s) used):

20) Internal standard routinely added to eluting solvent (if solvent used to elute absorbent)?

Yes

No

If "Yes", (please specify which compound(s) used):

21) For Instrumentation used in fire debris and/or ignitable liquid analysis, how often do you use each of the following
analytical techniques? (1-7 where: 1 = Never, 2 = Rare, 5 = Often, 7 = Exclusive)

GC-FID

GC-MS

GC-MS-MS

FTIR

GC-FTIR

other: (specify)

If you checked "Other", (please specify which technique(s) used):

22) Sample introduction to GC

(check one):
-- Choose one --
 If you checked "SPME" above, (please specify phase used):

If you checked "Other" above, (please specify which was used):

23) Type of column phase routinely used for GC separation (check all that apply):

100% polydimethylsiloxane (e.g. DB-1, DB-1ms, HPMS-1, OV-1, Rtx-1, DB-PETRO, etc.)

(5% phenyl)-methylpolysiloxane (e.g. DB-5, DB-5ms, HPMS-5, OV-5, Rtx-5, etc.)

(14%-Cyanopropyl-phenyl)-methylpolysiloxane (e.g. DB-1701, SPB-1701, Rtx-1701, etc.)

polyethylene glycol (e.g. DB-WAX, Carbowax, HP-20M, Supelcowax 10, HP-Innowax, etc.)

other: (specify)

If you checked "Other" above, (please specify column phase used):

24) For fire debris analyses, how often do you use the following QA/QC tests? (1-7 where: 1 = Never, 2 = Rare, 5 = Often, 7 =
Exclusive)

ASTM 1387 test mix or similar mixture

Internal Standards (e.g., 3-phenyltoluene)

Solvent Blanks

Apparatus Blanks (e.g., strips, glassware)

Recovery Checks (e.g., simulated case extractions

Peer Review

Other: (specify)

If you checked "Other" above, (please specify QA/QC tests used):

25) If you adhere to the following ASTM standards and guides, please indicate how closely you follow them? (1-7 where: 1 =
Never, 2 = Rare, 5 = Often, 7 = Exclusive)

ASTM-E 1387-01 (Standard Test Method for Ignitable Liquid Residues in Extracts from Fire Debris Samples by Gas
Chromatography)

ASTM-E 1618-06 (Standard Test Method for Ignitable Liquid Extracts by Gas Chromatography Mass Spectrometry)

ASTM-E 1385-00 (Standard Practice for Separation and Concentration of Ignitable Liquid Residues from Fire Debris
Samples by Steam Distillation)

ASTM-E 1412-00(2005) (Standard Practice for Separation and Concentration of Ignitable Liquid Residues from Fire
Debris Samples by Passive Headspace Concentration)

ASTM-E 1413-06 (Standard Practice for Separation and Concentration of Liquid Residues from Fire Debris Samples by
Dynamic Headspace Concentration)

ASTM-E 1388-05 (Standard Practice for Sampling of Vapors from Fire Debris Samples)

ASTM-E 1386-00(2005) (Standard Practice for Separation and Concentration of Ignitable Liquid Residues from Fire
Debris Samples by Solvent Extraction)

ASTM-E 1492-05 (Standard Practice for Receiving, Documenting, Storing and Retrieving Evidence in a Forensic Science
Laboratory)

ASTM-E 1459-92(2005) (Physical Evidence Labeling and Related Documentation)

26) Are you aware of new equipment or techniques on the market or in development that could be potentially of use in fire
debris analysis? These may be in the extraction, analysis, instrumentation, or interpretation of fire debris and ignitable
 liquids. Please indicate the type of potential improvement such as: reduction of analysis time, elimination of background,
specificity of identification, etc?

Yes

No

Description and/or Contact

27) What are the short-term needs in analytical methods for fire debris analysis?

28) What are the long-term needs in analytical methods for fire debris analysis?

Part E. Fire Debris Data Interpretation (Check an answer only on those questions which apply to you)

29) How often do you use an in-house ignitable liquid reference collection in case work?
-- Choose one --

30) How often have you used the on-line Ignitable Liquid Reference Collection (ILRC) in case work? (See
http://ncfs.ucf.edu/databases.html for more information about this database)

-- Choose one --

31) How does your laboratory routinely identify an ignitable liquid in fire debris (check one):
-- Choose one --

If you checked "Other" above please specify how your laboratory would identify an
ignitable liquid:

32) Rate the importance of the following courses as part of the education of fire debris analysts. (1-7 where: 1 = Not
Important, 4 = Moderate, 7 = Extremely)

General chemistry

Advanced organic chemistry

Inorganic chemistry

Introductory physics

Instrumental analysis

Organic chemistry

Analytical chemistry

Advanced physics

Physical chemistry

Advanced physics

Advanced mathematics

Other:

(if other please indicate course names here):

Part F. Explosives Analysis Case Work (Check an answer only on those questions which apply to you)
Please indicate which, if any, of the following explosives analytical laboratory procedures your agency performed (items 34
through 41) and the number of times they were performed items 42 through 49) in 2006:

Analytical Procedure (Yes/No)

33) Intact Low Explosives

Yes

No

34) Intact High Explosives

Yes

No

35) Intact IEDs

Yes

No

36) Post-Blast Low Explosives

Yes

No

37) Post Blast High Explosives

Yes

No

38) Post Blast IEDs

Yes

No

39) Intact Incendiary Device

Yes

No

40) Post-Reaction incendiary

Yes

No

41) Intact Low Explosives

-- Choose one --

42) Intact High Explosives

-- Choose one --

43) Intact IEDs

-- Choose one --
44) Post-Blast Low
-- Choose one --

45) Post Blast High

-- Choose one --

46) Post Blast IED's

-- Choose one --

47) Intact Incendiary Device

-- Choose one --

48) Post-Reaction incendiary

-- Choose one --

Part G. Explosives Analytical Methods (Check an answer only on those questions which apply to you)

49) In explosives analyses, how often do you use each of the following analytical techniques? (1-7 where: 1 = Never, 2 =
Rare, 5 = Often, 7 = Exclusive)

Microchemical analysis using PLM

Spot tests

Ignition analysis

Microchemical analysis using stereomicroscopy

TLC

Field explosives screening

IR

Raman spectroscopy

SEM-EDX

ICP

XRF

GC/MS

GC/FID

CE

HPLC

HPLC/TEA

FTIR

NMR

SEM-WDX

IMS

XRD

GC/TEA

GC/ECD
 IC

HPLC/MS

Other:

(please indicate):

50) Are you aware of new equipment or techniques on the market or in development that could be potentially of use in
explosives analysis? These improvements may be in analytical instrumentation, recovery of post-explosion residue,
isolation of un-reacted products, component reconstruction, etc Please indicate the type of potential improvement such
as: reduction of analysis time, elimination of background, specificity of identification, etc?

Yes

No

Description and/or Contact

51) What are the short-term needs in analytical methods for explosives analysis?

52) What are the long-term needs in analytical methods for explosives analysis?

53) For explosives/explosives residue analysis, how often do you see the following QA/QC tests: (1-7 where: 1 = Never, 2 =
Rare, 5 = Often, 7 = Exclusive)

8095 Calibration Mix A

8095 Calibration Mix B

Smokeless Powder (or similar) mixture

Internal Standard

(please indicate):

Solvent Blank

Peer Review

Other:

(please indicate):

Part H. Explosives Data Interpretation (Check an answer only on those questions which apply to you)

54) How often do you use an in-house explosives reference collection in case work?
-- Choose one --

55) Would you use an on-line explosives data (morphological descriptions, microphotographs, IR, MS, etc) in case work?
-- Choose one --

56) Rate the importance of the following courses as part of the education of explosives analysts. (1-7 where: 1 = Not
Important, 4 = Moderate, 7 = Extremely)

General Chemistry

Advanced organic chemistry

Inorganic chemistry

Introductory physics
 Advanced physics

Advanced mathematics

Intro. to explosives

Combustion explosions

Organic chemistry

Analytical chemistry

Physical chemistry

Instrumental analysis

Chemical analysis of explosives

The chemistry of pyrotechnics

Explosives analysis

Other:

(please indicate):

57) Rate training or course work in the following areas for explosives analysts? (1-7 where: 1 = Not Important, 4 = Moderate,
7 = Extremely)

History of Explosives

Terminology and vocabulary of explosives

Composition of low explosive materials

Construction of commercial pyrotechnic devices

Construction of military devices (e.g. simulators, rockets, hand grenades)

Range procedures

Peroxide Based Explosives

Manufacturing of explosives

Composition of high explosive materials

Construction of improvised devices

Analytical examination of high and low explosive materials and residues

Recognition of improvised device components

Other:

(please indicate):

Part I Fire Scene Specialists (Check an answer only on those questions which apply to you)

58) Indicate the number of fire scenes processed in 2006 by all of the investigators at your physical location (check one):
-- Choose one --

59) Have you had formal training in the investigation of fire scenes?

Yes

No

Rate the importance of formal training in the investigation of fire scenes: (1-7 with 1 = Not at all, and 7
-- Choose one -
= Very)
 -

60) What type of containers do you use in submitting fire debris to a laboratory for ignitable liquid determination?

Container / Percent of Time

Clean Unused Paint Cans

Glass Jars/Vials

Nylon Bags

Other:

If you checked "Other" above, (please specify what you would use here):

61) What type of equipment is essential to help you process fire scenes?

62) What type of equipment is desirable to help you process fire scenes?

Does your agency have, or have access to, an accelerant (hydrocarbon) detection canine team to assist in
-- Choose one
investigations?
--

If yes, what percentage of the investigations would utilize such a team? -- Choose one
--
Does your agency have, or have access to, a portable electronic "sniffing" device to assist investigations? -- Choose one
--
If yes, what percentage of the investigations would utilize such a device? -- Choose one
--

63) Does your agency have a specific criteria used calling out the services of an accelerant (hydrocarbon) detection canine
team?

Yes

No

If "Yes", (please briefly describe the criteria used here):

64) Does your agency officially track the usage of accelerant (hydrocarbon) detection canine team in each investigation?

Yes

No

65) Does your agency officially track the track positive/negative hit rate of accelerant (hydrocarbon) detection canine team in
each investigation in which a team is used?

Yes

No

66) Do your fire/explosion scene investigators have access to laboratory tests other than fire debris/ignitable liquid analysis
(e.g. flame spread testing, identification of unknown materials in debris, fire modeling, etc.)?

Yes

No

67) Do you think that you would benefit from having access to a national and/or international data base of certified accelerant
(hydrocarbon) detection canine teams?
 Yes

No

68) Does your agency have ready access to a fire debris analyst/scientist for consultation either with you at the fire scene or by
telephone or Internet?

Yes

No

If Yes, how often was their expertise called upon while you were processing fire scene in 2006?
-- Choose one --

69) If No, would you want to have access to this type of expertise to assist you with your investigation?

Yes

No

Rate the importance of having a fire debris analyst/scientist available for consultation while you are
-- Choose
processing a scene. (1-7 where: 1 = Not at all, 7 = Very)
one --

Part J. Explosive Scene Specialists (Check an answer only on those questions which apply to you)

70) Indicate the number of explosive scenes analyzed/processed by all of the investigators at your physical location (check
one):
-- Choose one --

71) Have you had formal training in the investigation of bombing crime scenes?

Yes

No

72) How important is formal training in the investigation of bombing crime scenes?
(1-7 where: 1 = Not at all, 7 = Very)

-- Choose one --

73) What types of containers do you use in submitting explosion debris to a laboratory for examination?

Container / Percent of Time

Clean Unused Paint Can

-- Choose one --

Glass Jars / Vials

-- Choose one --

Nylon Bags
-- Choose one --

Other
-- Choose one --

If you checked "Other" above, (please specify what container you used here):

74) What type of equipment is essential to help you process bombing scenes:

75) What type of equipment is desirable to help you process bombing scenes:
76) Do you currently utilize the equipment you listed?

Yes

No

77) Are there other types of training/classes that you feel would be helpful to you in order to do your job?

78) Does your agency have, or have access to an explosives detection canine team to assist in investigations?
-- Choose one --

79) If yes, what percentage of the investigations would utilize such a team?
-- Choose one --

80) Does your agency have a specific criteria used calling out the services of an explosive detection canine team?

Yes

No

If "Yes", (please briefly describe the criteria used here):

81) Does your agency officially track the usage of explosive detection canine team in each investigation?

Yes

No

82) Does your agency officially track the track positive/negative hit rate of explosive detection canine team in each
investigation in which a team is used?

Yes

No

83) Do you think that you would benefit from having access to a national and/or international data base of certified explosive
detection canine teams?

Yes

No

84) Does your agency have ready access to an explosives analyst/scientist for consultation either with you at the bombing
scene or by telephone or Internet?

Yes

No

85) If Yes, how often was their expertise called upon while you were processing bombing scenes in 2006?
-- Choose one --

86) If No, would you want to have access to this type of expertise to assist you with your investigation?

Yes

No
87) Rate the importance of having an explosives analyst/scientist available for consultation while you are processing a scene:
(1-7 where: 1 = Not at all, 7 = Very)

-- Choose one --

88) In 2006 how often did you respond to scenes which contained the following:

Intact Explosives
-- Choose one --

Intact IED
-- Choose one --

Post Blast Explosives

-- Choose one --

Post Blast IED

-- Choose one --

Intact Incendiary Device

-- Choose one --

Post Reaction Incendiary Device

-- Choose one --

89) In 2006, of the scenes in which it was necessary to "render safe" a device, please indicate the method and times
employed:

Hands on
-- Choose one --

Remote Cutter
-- Choose one --

Disrupter
-- Choose one --

Other
-- Choose one --

If you checked "Other" above, (please specify what container you used here):

Part K. Laboratory Research Needs (Check an answer only on those questions which apply to you)

90) What major breakthrough in the area of ignitable liquid or explosives analysis would have the most impact on the area of
forensic science? (Think big the sky is the limit)

91) Rank the following research areas in terms of how likely you believe they will have a significant impact on ignitable liquid or
explosive analysis? (1-7 where: 1 = not likely, 3 is possible, 5 is probable, and 7 is extremely likely)

New Analytical Methods

-- Choose one --

New and Improved Databases

-- Choose one --

New Data Analysis Methodology

-- Choose one --

New Standards
-- Choose one --

Sample archiving practice/method

-- Choose one --

92) Is additional research required in the area of explosives disposal/disruption?

Yes

No

93) In your opinion, which of the following issues would provide the most significant improvement on the efficiency of useful
sample collection at the fire and explosive scenes? (please select only one)
-- Choose one --

94) Please rank the importance of an analyst's knowledge of the fate and transport of explosives in the environment as related
to forensic casework? (1-7 where: 1 is not at all, 3 is fairly important, 5 is very important, 7 is urgent)
-- Choose one --
95) How important is it to push for lower detection limits in the laboratory analysis of explosives? (1-7 where: 1 is not at all, 3
is fairly important, 5 is very important, 7 is urgent)
-- Choose one --

96) In fifteen words or fewer, what is the biggest challenge that you face as a fire or explosion analyst?

97) What area(s) of your investigation analysis is(are) most frequently challenged in court? List up to 3 please.

Area 1

Area 2

Area 3

98) How significant are the Daubert/Frye standards when it comes to introducing a new methodology into your laboratory
practice, and if this is an issue, can you suggest a method for overcoming the challenge? (1-7 where: 1 is not at all, 3 is
fairly important, 5 is very important, 7 is urgent)
-- Choose one --

99) Would a "new practices" review panel comprised of academic and practicing forensic chemists facilitate the implementation
of new methodologies and their importance in court? (Yes, No, Possibly)
-- Choose one --

100) Are you or the analysts in your laboratory interested in collaborating with university researchers to provide an avenue for
implementing new analytical and field methodologies? (Yes, No, Possibly)
-- Choose one --
Notes

Bar Graph Confidence Intervals:

The bar graphs presented in the Results Analysis section include 95% confidence intervals to illustrate the degree of precision
available in your results. For example, in the following graph 54.2% (160/295) of the respondents indicated they will vote
Democrat vs. 45.8% (135/295) Republican.

However, because the survey is based on the results of only 295 respondents, the actual percent of people who will vote Democrat
could be somewhat higher or lower than 54.2%. Confidence intervals tell you how much higher or lower the percent could be. The
I-bar show and the tip of each bar illustrates the spread between the lowest and highest value you are likely to see if you were to
survey the entire population. In the example above, you can be 95% certain that the actual percent of people who will vote
Democrat will be between 48% and 60%. Furthermore, somewhere between 40% and 52% of people will vote Republican. As you
increase the number of respondents the range of uncertainty shrinks.

Confidence:

Each bar graph group is followed by the text "Confidence:" and a percentage. This number is the largest confidence interval found
on any of the bars in the group and can be used as a summary measure of precision. The more precise, non-symmetrical
confidence intervals are illustrated separately on each bar.

Average Score:

Some bar graph groups are followed by the text "Average Score:" and a number that represents the weighted average of all
options chosen by the respondents. For example, if you asked respondents to rate their satisfaction on a scale including Very
satisfied, Satisfied, Neutral, Dissatisfied, and Very dissatisfied and half responded Very satisfied and half responded Satisfied, the
average score would be 1.5--half chose the first option (score=1) and half chose the second option (score=2), so the average
score is 1.5.

Correlation:

The answers to two questions are correlated when they tend to move together. For example, if you ask respondents to rate their
overall satisfaction with your company and also ask if they are likely to purchase from your company again, the answers to these
questions will probably show a strong correlation. That is, when satisfaction is high, the likelihood of repeat purchase is high. This
is a positive correlation. Some question pairs have negative correlation. For example, the time a person spends on hold when
calling for support usually has a negative correlation with overall satisfaction. Correlation is presented as a number from -1 to 1
where -1 is perfect negative correlation, 0 is no correlation, and 1 is perfect positive correlation.

When a statistically significant correlation between the answers of any two questions is found the report will include a note
highlighting the correlation. This information can be used to gain insight into what factors drive key measures such as overall
satisfaction.
 A-LIST COURSES

PROVIDER

TEXAS COMMISSION ON FIRE PROTECTION COURSES COURSE #

Note: TCFP courses require completion of state exam to receive credit
Aircraft Rescue Fire Fighter N/A
Driver Operator-Pumper N/A
Fire Fighter I (component of Basic Structure certification) N/A
Fire Fighter II (component of Basic Structure certification) N/A
Fire Inspector I (component of Basic Inspector certification) N/A
Fire Inspector II (component of Basic Inspector certification) N/A
Fire Investigator N/A
Fire Officer I N/A
Fire Officer II N/A
Hazardous Materials Technician N/A
Instructor I (course completed after March 1, 2006) N/A
Instructor II N/A
Instructor III N/A

NATIONAL FIRE ACADEMY COURSES COURSE #

Advanced Analysis for Decision Making R493
Advanced Fire Safety (Management/Administration of Public Fire Education) R341
Advanced Incident Command (also Incident Command II) R304
Advanced Leadership Issues in EMS R151
Advanced Life Support Response to Hazardous Materials Incidents R247 OR N247
Advanced Safety Operations and Management R154 OR N822
All-Hazards Incident Management Team Training (unk)
Analysis of Arson Management R213
Applied Research Project (off-campus project, part of Executive Fire Officer Course) N/A
Arson Detection R200
Challenges for Local Training Officers N815
Chemistry for Emergency Response R233 or N233
Chemistry of Haz. Mat. - Instructor's Program, Level I R239
Chemistry of Hazardous Materials (also Hazardous Materials I) R234
Code Management: A Systems Approach R101
Command and Control Decision Making at Multiple Alarm Incidents R297
Command and Control of Fire Department Operations at Target Hazards R314 or N825
Command and Control of Fire Department Operations at Multi-Alarm Incidents R304
(also Command and Control of Fire Department Operations) xxx
Command and Control of Fire Department Operations at Natural and Man-made Disasters R308
(also Command and Control at Catastrophic Disasters) xxx
(also Command and Control at Earthquakes and Catastrophic Disasters) xxx
Command and Control of Incident Operations R312 or N831
Community Education Leadership R353
Community Fire Protection: Master Planning (unk)
Developing Fire and Life Safety Strategies R362
Discovering the Road to High Risk Audiences R359
 A-LIST COURSES

Emergency Medical Services: Special Operations R152 or N152

Emergency Medical Services: Management of Community Health Risks R149 or N149
Emergency Medical Services-Administration for Volunteers U153
Emergency Response to Terrorism - Incident Management R817
Emergency Response to Terrorism: Adv Tactical Consequence Mgmt (unk)
Evaluating Performance Based Designs R108 or N108
Executive Analysis of Community Risk Reduction R274
Executive Analysis of Fire Service Operations in Emergency Management R306
(also Strategic Analysis of Fire Department Operations) xxx
Executive Development (Senior Executive Development/Fire Executive Development III) R123
Executive Leadership (also Strategic Analysis of Executive Leadership) R125
Executive Planning (Executive Information Planning) R506
Fire and Emergency Services Pre-Disaster Long Term Recovery Planning R526 or N526
Fire Arson Investigation (Arson Investigation) R205
Fire/Arson Origin and Cause Investigations R206
Fire Cause Determination for Company Officers R811 or N811
Fire Command Operations R801
Fire Dynamics-Fire Modeling R203
Fire Inspection Principles (also Fire Prevention Specialist I) R220 or N220
Fire Prevention Specialist II (also Fundamentals of Fire Prevention II) R222
Fire Protection for the Built Environment R135 or N135
Fire Protection Systems for Emergency Operations R227 or N227
Fire Service Communications R107
(also Executive Development II/Leadership and Communications) xxx
(also Fire Service Leadership Communications) xxx
Fire Service Course Design (also Fire Service Course Development) R129
Fire Service Financial Management R333
Fire Service Information Management R502
Fire Service Instructional Methodology (also Educational Methodology) R113
Fire Service Organizational Theory R331
(also Executive Development II: Middle Management I xxx
(also Executive Development for Middle Management) xxx
Fire Service Planning Concepts for the 21st Century R802 or N808
Forensic Evidence Collection R214
Hazardous Materials II (unk)
Hazardous Materials Incident Management R243 or N814
Hazardous Materials Operating Site Practices R229 or N229
Hazardous Materials Operating Site Practices--Instructor's Program R404
Hazardous Materials Tactical Considerations R235
Hazardous Substance Specialist (also Hazardous Materials Substance Specialist) R237
Interpersonal Dynamics in Fire Service Organizations R332
(also Executive Development for Middle Management II) xxx
Interviewing - Interrogation Techniques and Courtroom Testimony R208
Introduction to Fire Safety Education R115
Juvenile Firesetter Intervention Specialist I and II Leadership R628
Leadership and Incident Command/Communications Course (also Incident Command I) R301
Leading Community Risk Reduction R280
 A-LIST COURSES

Management for Arson Prevention and Control R207

Management of Emergency Medical Services R150
(also Management of Emergency Medical Services for the Fire Service) xxx
Management of Fire Prevention Programs R225
Management Strategies for Success R824
Managing the Code Process (also Codes and Ordinances) R101
National Fire Incident Reporting System Program (Resident course-not online) R499
Organization and Use of Instructional Materials (unk)
Organizational Theory in Practice R331
Partnering for Fire Defense and Emergency Services Planning R508 or N508
Planning for a Hazardous Materials Incident (also Hazardous Materials III) R236
Plans Review for Inspectors (also Overview of Plans Review for Inspectors) R102
Presenting Effective Public Education Programs R116 or N826
Prevention Solutions for Small Departments and Communities R823
Principles of Fire Protection: Structures and Systems R222
Public Fire Education Specialist (also Public Information) R340
Rescue Systems 1 (unk)
Strategic Analysis of Community Risk Reduction R309
(also Strategic Analysis of Fire Prevention Programs) xxx
Strategic Analysis of Fire Department Operations R306
Strategic Management of Change R130
Strategies for Community Risk Reduction R274
Training Program Management (R342)
Use of Microcomputers for Fire Service Management R500
VIP: Leadership and Administration R810
Wildland/Urban Interface Fire Protection: A National Problem with Local Solutions R600

TEEX COURSES COURSE #

Advanced Structural Collapse 3 TNG25S
Advanced Structural Collapse 4 TNG26S
Advanced Structural Collapse 5 TNG27S
Collapse Rescue Operations (also Structural Collapse Technician 1) TNG23R
Disaster Medical Specialist TNG30S
Disaster Technical Search Specialist TNG11S
Hazardous Materials Transportation Specialist Training HAZ029
Structural Collapse Technician I (also now called Collapse Rescue Operations) TNG23O
Structural Collapse Technician 2 TNG23T
Trench Rescue Technician RES020

OTHER PROVIDERS (provider in parentheses) COURSE #

Confined Space Resuce (Tarrant County College) FPTA-1000
Hazardous Device School (U.S. Army) N/A
NIMS Train the Trainer (GDEM) G-449
Rope Rescue (Tarrant County College) FPTA-1002
Swiftwater Technician (Tarrant County College) FIRS-1091
 A-LIST COURSES

Technical Rope Rescue: Technician Level (Rescue 3 International) TRR:TL

Trench Rescue (Tarrant County College) FIRS-1091
Vehicle and Machinery Rescue (Tarrant County College) FPTA-1004
 B-LIST COURSES

PROVIDER

TEXAS COMMISION OF FIRE PROTECTION COURSES COURSE #

Note: TCFP courses require completion of state exam to receive credit
Hazardous Materials Awareness (component of Basic Structure certification) N/A
Hazardous Materials Operations (component of Basic Structure certification) N/A
Instructor I (course completed before March 1, 2006) N/A
Plans Examiner I (component of Basic Inspector certification) N/A

NATIONAL FIRE ACADEMY COURSES COURSE #

A Comprehensive Fire Protection Approach for Commercial Occupancies F355 or W355
Alternative Water Supply: Planning and Implementing Programs (online course) Q217
Arson Detection for 1st Responders F201
Basic Life Support and Hazardous Materials Response F246 or R246
Bldg Construction for Fire Suppr. Forces: Non combustible/Fire Resistive Construction F150 or W150
Bldg Construction for Fire Suppr. Forces: Principles, Wood/Ordinary Construction F100 or W100
Command/Control of Wildland/Urban Interface Operations for the Structural Chief Officer F612 or W612
Commanding the Initial Response F240
Community Fire Defenses: Challenges and Solutions F800
Community Risk Issues and Prevention Intervention F347 or W347
Community Risk Issues and Prevention Interception (unk)
Community Safety Educators (online course) Q118
Command and Control Simulation Series I: Ranch House (online course) Q324
Command and Control Simulation Series I: Town House (online course) Q325
Command and Control Simulation Series I: Strip Mall Hostage/Arson Fire (online course) Q328
Command and Control Simulation Series I: Casper Hall Dorm (online course) Q327
Command and Control Simulation Series I: Mansion (Q326) (online course) Q326
Command and Control Simulation Series I: Nursing Home (online course) Q424
Conducting Basic Fire Prevention Inspections (Replaced in 1995) (unk)
Cooperative Leadership Issues in Wildland/Urban Interface Operations F613 or W613
Courtroom Preparation and Testimony for First Responders F209 or W209
Emergency Medical Service and Administration: An Overview F500
Emergency Response to Terrorism: Strategic and Tactical Considerations for Supervisors F549 or W549
Emergency Response to Terrorism: Strategic Considerations for Company Officers F555 or W555
Emergency Response to Terrorism: Tactical Considerations for Company Officers (unk)
Emergency Response to Terrorism: Tactical Considerations for EMS (unk)
Emergency Response to Terrorism: Tactical Considerations: Hazardous Materials F553
Emergency Response to Terrorism: Basic Concepts H531
Emergency Response to Terrorism (online course) Q534
Executive Skills Series - Leading Diverse Communities beyond Conflict F516 or W516
Executive Skills Series: Influencing F518 or W518
Executive Skills Series: Managing and Leading Change F517 or W517
Fire Behavior in a Single Family Occupancy F356 or W356
Fire Modeling F357 or W357
Fire Prevention for 1st Responders and Small Departments F271 or W271
Fire Prevention for High-Risk Populations: Age and Disability Factors F275 or W275
 B-LIST COURSES

Fire Risk Analysis: A Systems Approach F200

Fire Service Management (unk)
Fire Service Supervision: Increasing Personal Effectiveness F310 or W310
Fire Service Supervision: Increasing Team Effectiveness F320 or W320
Fire Service Supervision (online course) Q318
Firefighter Health and Safety: Program Implementation and Management (unk)
Firefighter Safety and Survival: Company Officer's Responsibility F125
Hazardous Materials Incident Analysis F410
Hazardous Materials: The Pesticide Challenge (unk)
Health and Safety Officer F730 or W370
Incident Command System (unk)
Incident Command System for Structural Collapse Incidents F322 or W322
Incident Command Systems for EMS F160
Incident Command Systems for High-rise Operations F321
Incident Safety Officer F729 or W729
Infection Control for Emerg Response Personnel: Supervisor's Role & Responsibility W250
Initial Company Tactical Operations F175
Initial Fire Investigation N216 or R216
Initial Response to Hazardous Materials Incidents: Basic Concepts F809 or W809
Initial Response to Hazardous Materials Incidents: Concept Implementation F808 or w808
Instructional Techniques for Company Officers (unk)
Interface Fire Operations for Structural Chief Officers (unk)
Introduction to Fire Inspection Principles and Practices (unk)
Intro to Wildland/Urban Interface FF for the Structural Company Officer W610
Intro to Unified Command for Multi-Agency and Catastrophic Incidents W315
Juvenile Firesetter Intervention Specialist I F626 or W626
Juvenile Firesetter Intervention Specialist II F627 or W627
Leadership I: Strategies for Company Success F803 or W803
Leadership II: Strategies for Personal Success F804 or W804
Leadership III: Strategies for Supervisory Success F805 or W805
Managing Company Tactical Operations: Decision Making F450 or W450
Managing Company Tactical Operations: Preparation F375 or W375
Managing Company Tactical Operations: Simulation (unk)
Managing Company Tactical Operations: Tactics F451 or W451
Managing in a Changing Environment F604 or W604
Methods of Enhancing Safety Education F344 or W344
National Fire Incident Reporting System Program (online course) Q494
NIMS Incident Command System for Emergency Medical Services (unk)
NIMS Incident Command System for the Fire Service F806
Preparation for Initial Company Operations F458 or W458
Preparing for Incident Command F210
Prevention and Mitigation Advocacy for Small Departments F272 or W272
Principles of Building Construction: Combustible (unk)
Principles of Building Construction: Noncombustible (unk)
Public Fire Education Planning (unk)
Recognizing and Identifying Hazardous Materials, 2nd Ed. (unk)
Rescue Systems One (unk)
 B-LIST COURSES

Shaping the Future F602 or W602

Strategy and Tactics for Initial Company Operations F455
Tactical Operations for Company Officers I F801 or w801
Tactical Operations for Company Officers II F802 or W802
Testing and Evaluation of Water Supplies for Fire Protection (online course) Q218
Training Operations in Small Departments F290 or W290
Volunteer Fire Service Management (unk)
Wildland Urban Interface Fire Operations (unk)
Wildland/Urban Interface Fire Protection (unk)

TEEX COURSES COURSE #

Confined Space Rescue Technician Training RES002
Confined Space Rescue Training RES001
Hazardous Materials Highway Specialist Training HAZ027
Hazardous Materials Intermodal Training HAZ028
Hazardous Materials Rail Specialist Training HAZ026
LNG Spill Control and Fire Suppression LNG101
LNG Spill Control and Fire Suppression: Workshop LNG102
Rescue in a Contaminated Environment TNG63S
Rope Rescue Awareness and Operations RES000
Rope Rescue Certification RES005
Safe Practices for Traffic Incident Responders HWS020
Swift Water Rescue Operations TNG80O
Swift Water Rescue Operations Upgrade TNG80U
Swift Water Rescue Technician TNG80Z
Trench Rescue Awareness and Operations RES500
WMD Enhanced Urban Search and Rescue Operations TNG61O
WMD Terrorism Awareness for Emergency Responders (online course) AWR110 or AWR160
WMD Terrorism Incident Defensive Operations for Emergency Responders PER212

OTHER PROVIDERS (provider in parentheses) COURSE #

Advanced Disaster Life Support (AMA) (unk)
Basic Disaster Life Support (AMA) (unk)
Basic/Intermediate Groundcover & Wildland Urban Interface FF (Texas Forest Service) BIG-WUI
Incident Command System-100 (various providers-must be NIMS compliant) N/A
Incident Command System-200 (various providers-must be NIMS compliant) N/A
Incident Command System-300 (various providers-must be NIMS compliant) N/A
Incident Command System-400 (various providers-must be NIMS compliant) N/A
Incident Response to Terrorist Bombings (Four-day course at New Mexico Tech Univ.) (unk)
Incident Safety Officer Academy (Fire Department Safety Officers' Association) (unk)
Modular Emerg. Response Radiological Transportation Trng. (U.S. Dept of Energry) (unk)
National Incident Management System: NIMS (DHS/FEMA/EMI) IS-700 or 700a
National Response Plan or National Response Framework (DHS/FEMA/EMI) IS-800, 800a, or 800b
Radiological/Nuclear Course for Hazmat Technicians (DHS/ODP) PER-241
Swiftwater Rescue Technician (Rescue 3 International) SRT-1
 B-LIST COURSES

Swiftwater Rescue Technician, Advanced (Rescue 3 International) (unk)

Wildland Firefighter Training (Texas Forest Service) must include courses L-180 and I-100 S-130/S-190
WMD Emergency Medical Services Training (DHS/ODP, Anniston, AL) (unk)
WMD Hazardous Materials Technician Training (DHS/ODP, Anniston, AL) (unk)
WMD Incident Command Training Course (DHS/ODP, Anniston, AL) (unk)
WMD Incident Management/Unified Command Concept (DHS) (unk)
WMD Incident Management/Unified Command Concept-Internet course (DHS) (unk)
WMD Technical Emergency Response Training Course (DHS/ODP, Anniston, AL) (unk)
WMD Terrorism Awareness for Emergency Responders (DHS) (unk)
The
Ignition
Matrix

Courtesy of Lou Bilancia, Synnovation Technology