Sunday, October 24, 2010

Fire Investigation and Junk Science

Why you could find yourself a criminal suspect or civilly liable if you’re involved with a fire.

by Nick Markowitz, Jr.

Everyday there are people who are charged with arson when a fire has taken place in their home or place of business.  How many times charges are warranted is a subject being hotly debated in the fire community today.

The problem is a general lack of training for some investigators. There's even an on going debate among trained investigators as to the cause of these fires. All of this has unfortunately lead to people being arrested and eventually convicted of arson. Many are found civilly liable for causing a fire that they may not have had anything to do with. In one case a Texas man may have even been executed for the crime of arson when he may not have done it.
Now you say to yourself, “WOW! How can this happen in a modern world with DNA and advanced investigative techniques?” Well, it does, and it happens easier than you think. The worst part is trying to right a wrong in court after you've been convicted. It can take decades to be exonerated.

At any one time in this country there are various innocence-type organizations that are fighting for wrongly-convicted people. This includes not only rapists and murderers, but arsonists, too. There are excellent organizations like the IAAI (International Association of Arson Investigators) that provides standards for the training and certification of fire investigators. This includes the prestigious CFI certification. While it is not mandatory in some states to have this or any other type of certification in order to investigate fires, many states, including my own, does not even require that you be certified as  private investigator.

While fire investigators are required to follow the Guidelines of NFPA 921 on fire and explosion investigations, which bases its standards on the Scientific Method, this manual is often looked at as a guide, sometimes even scoffed at. And yet many investigators don't even own a copy.

While it is true that public sector investigators, such as fire marshals, arson investigators, etc., must be certified to do their jobs under the rules of ICC (International Code Commission), in states which follow ICC Codes many don't even know they are required to carry this certification. This includes lawyers as well.

An entire case brought by a fire marshal against an individual for arson could be thrown out of court
if he is not certified by ICC. This is due to a rule generally referred to as as “Fruit of the poison tree” where if one thing is wrong, everything is wrong. Think tree fruit and roots... yet it is allowed to go on.
Then, when it comes down to the court case, it becomes a battle of the experts and who has more initials behind his or her name as well as bravado.

Even learned experts disagree. And when you're a little guy trying to claim something happened a certain way, you can forget it. Since you are an unimportant person, you are nothing even if you are right. Because 921 or an expert says it happened this way and this way only, it's over before it begins.

A General Lack of Open Minds
There are very few open minds in learned professionals because the science tells them otherwise.
Experts as I have found do not want to listen to technical people like myself who are out in the field everyday. I have 30+ years as an electrician, a troubleshooting electrician at that. In addition I also have heavy electronics experience and I often see and observe things before they entirely burn up completely  whereas experts in many cases only know what happened afterwards.

When they investigate a claim they do not have the day-to-day dealings that a troubleshooter or someone of a lower caliber in their opinion has. So they take it off to the lab and if it can not be duplicated, then it could not have happened that way--period.

As anyone of a low caliber, as I have been called in court and fire  blogs, can tell you, when you work in the field and see something that can not be 100% duplicated in the lab, it needs recorded as it is happening in the field. This is what I have been trying to introduce into fire investigation, that sometimes statistics and instruments are not enough. Sometimes they are not accurate because of who is doing the work.

In actuality, only a relatively small percentage of fires are ever investigated. Many times if a fire is small enough, no one ever comes to investigate. The home or building owner, knowing they have a deductible, just handles it and that's the end of the story. Sometimes that damage is negligible or it's easily explained and so it's determined that an investigation is not warranted. But yet because so many of these so-called small change fires are not investigated, patterns and trends can be completely missed. Even potential serial arsonists could be at work and no one knows.

The fact is, small fires can teach us big lessons, but hardly anyone looks at them--they're written up and maybe reported on the state statistical site and that's it. This is why I have, for several years now, worked with and submitted new and different findings to investigators, engineers, and CPSC agents when I go to do my job as a troubleshooter.

Using the Scientific method along with Forensic Techniques, I carefully and thoroughly document a situation, Where I can carefully remove a burned up item I do so and I provide it to others who might be interested in examining it. How many times I have brought in a burned up electrical items and you hear an expert say, “Well, that shouldn’t have happened.”   Well, it did happen and we need to carefully document it and add hat we learn to the collective storehouse of knowledge.

I have found working as an electrician and/or fire photographer that the story I get when I go and repair something and the story an investigator gets is often two different things. When I have been at fires taking photos and I afterwords hand the disc to the fire marshal at his office the next morning and I compare notes with him, the story I get as to what someone saw and what the fire marshal was told is often times totally different. When people talk to me, they’re talking to Nick the photographer, not Nick the official who they may or may not be in trouble with.

I see this all the time as a troubleshooter. People are careful when they talk to an investigator about fires and accidents because they feel they may be blamed and their insurance will not cover it.

Case in Point
A typical matter is the one I had earlier in the spring at a customers fabricating business. The client has several 5-ton, overhead cranes they use in the facility. A couple times now I have had to go down and reset the overload system. Well this time the crane stopped for good. The owner, someone official in people’s eyes who can get them fired, walks in and wants to know whatin the sam hill caused the crane to stop working. The workers tell him, “Well boss, the cranes are old and cranky and probably just died from old age.” 

When I walk in and start working on the cranes and ask questions as Nick the electrician—a working guy just like them--I get the real story. The shop foreman mentioned to me that one of the new guys used the crane to pull a piece of steel out of the rack. I asked him whether anyone told him not to do that and the reply I got was, “No, I was not here when it took place.” I walked over to the employee and explained to him what I found, that the crane motor control blew up from abuse, not old age. I also told him that someone should have used the tow motor instead of the crane to do what they did. He told me that no one showed him how to use one and he was too embarrassed to admit it.

Well that afternoon The foreman had everyone qualify for there tow motor license and things were smoothed out because the new guy did not feel like he was being singled out for training. The boss also was happy because the problem was solved and he did not have to fire anyone as the workers handled it internally. He figured all along they where lying to him but he likes them and their good workers. So as you can see there are often two different story's and this is especially true when horseplay on a job site is involved. When this occurs, things can go very bad, very quickly.

Reflecting on Lessons Learned
My dad, a retired electrician/steel worker, and. one of his buddies from where they retired stopped by my home one day. We talked about a bad accident at a plant down river from us. His friend told us a story about something that had taken place down at the Coke Facility where he worked.

As a joke on the boss’ birthday, they took a prophylactic and blew it up to a huge size with flammable Coke Gas  and then they placed it under his office, which was couple feet off the ground on stilts. They then took a long stick with a hot poker on the end and set the prophylactic off. It naturally shook his office and when he came out all mad and ready to fire everyone, they had this huge birthday cake setup for him. It was then that he realized they where just playing a game with him.

Now lets face it, had this joke gone terribly bad, do you think any of these grown men when questioned by OSHA or a fire investigator would ever admit to what had actually taken place?  It’s for sure there would not be a trace of a prophylactic.

The fact is, poor training is just the tip of the iceberg. There are many fire investigators out there using testimony and methods which have been proven as junk science. Like spaling concrete or gator-looking marks on wood are a sure sign of a poured accelerant. But courts except it. Why? Because attorneys do not know to challenge it with a Daubert hearing to prove the theory. Once something is excepted in court, that’s it for ever. It becomes allowable testimony for a long time unless it happens to be challenged.

This is what got the gentleman in Texas executed, and now, after numerous court reviews, it has brought a rebuke of the courts for allowing bad investigation methods to be used as fact. Well, you can see what the issues are and why cases both criminal and civil can go bad.

Once I was accused of stealing from a school where I worked. Now, the detective should have done his job and found out that I am an Eagle Scout and a general stand-up kind of guy. Instead, he was a hard guy detective who was bound and determined to try and convict me for something I did not do--all because he didn’t like my answers. He  ended up tying up valuable taxpayer money, he got egg on his face, and the real criminal, a temporary cleaner, was finally caught and fired--after three months of stealing things.

Unfortunately too many investigators get it in their minds “this is how something went down” and “this is how it has to be.” They refuse to take two seconds to sit back and say to themselves, “Well, maybe the guy is right after all.”

Luckily the bell has gone off and some have now taken a second look. Some of them have learned that things where wrong with what they thought and they consequently stop cases in progress. Sadly, others. Continue to follow blindly and do whatever they do badly.

Everyday in this world new and completely different results are found. But when it comes to the fire investigation community, unfortunately, if you have a new look at something, it’s like the Spanish Inquisition or the questioning of Galileo concerning whether the Earth is actually flat. Now, I am sure we’ll hear from a few of these learned professionals on the subject.

This is my blog, so speak and make your point and let the readers decide. Who is believable--the guy with 30 + years to the grind stone or a “learned opinion”?

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