Burned

by Edward Humes

  Carney next asked if Bieber would change his mind about the quality of the original investigation if he knew Ron Ablott had been aware of the then-new NFPA guidelines in 1992 debunking arson myths and requiring the scientific method.

  The trick question didn’t fool Bieber, who knew Ablott had testified that though he had not read the guidelines, he believed no investigator worth his salt would fully embrace them. Bieber said it wasn’t just a matter of awareness of the guidelines, but acceptance. And very few fire investigators on the law-enforcement side were accepting back then, Bieber added.

  Finally Carney turned from hypotheticals to specific details from the Parks case. What if you found what looked like an attempt to deceive fire investigators? What if those sabotaged wires were planted there not to actually start a fire, but staged to lead investigators into believing a short circuit accidentally started the fire?

  “Couldn’t that be evidence,” Carney asked, “for an investigator to infer that a fire was incendiary?”

  Again, Bieber refused to give Carney what he wanted. Finding meaning in a bundle of wires that did not start the fire would require nonscientific conclusions—or cognitive bias, he said. “That misleading evidence does not provide any information as to what the true ignition source was,” Bieber explained. He’d still have to find the true origin and cause of the fire. The wires wouldn’t help him do that.

  This line of questioning from Carney was illuminating, however. First, it signaled that the prosecution—probably through one of its own experts who would testify later—had come up with an entirely new theory of the case. At trial, fire investigators and the prosecutor insisted that Jo Ann Parks had assembled a crude incendiary device—the bundle of wires and drapery and small cuts in the insulation—to start a fire. When it failed to ignite, they said she must have then set the fire by hand with a match or lighter. But now Carney was suggesting a scenario in which the cut wires had been staged merely as a ploy to fool investigators into declaring the fire an accident.

  It’s an interesting new theory that implies Jo Ann Parks was some kind of criminal mastermind. But it brings with it an unintended implication as well: that Ablott’s original investigation had been even more flawed, deceived, and off base than the innocence project had claimed.

  Near the end of his testimony, Carney did get Bieber to admit one thing: Even a biased investigator, or one using outdated science, could still reach the correct conclusion about the origin and cause of the fire. Bias doesn’t automatically make the investigator wrong in the Parks case, or any other, Bieber agreed.

  “It’s a lot like throwing darts when you’re blindfolded,” he told the judge. “Occasionally you might still hit the bull’s-eye. But that’s not the way to throw darts.”

  * * *

  • • •

  Out in the hallway, Cohen expressed cautious optimism about Bieber’s impact on the case.

  “No way do I feel, ‘Oh good, we’ve got this,’” she said. “But it was a good appetizer to set the foundation for what’s to come.”

  The prosecution team came away seeming to feel much the same about the opening witnesses, though with a bit of unease about the judge mixed in. “No one in the business takes Bieber seriously,” Nordskog said with confidence.

  But then the arson detective frowned, wondering: What if the judge finds the cognitive bias argument persuasive? Judge Ryan seemed interested in the idea and took over the questioning at one point, the arson detective mused, engaging in the age-old courthouse practice of trying to read a judge’s mind based on anything from eye blinks to yawns to how many times the person on the bench interrupts one side versus the other. So far the judge spent way more time interrupting the district attorney’s side.

  “It worries me,” Nordskog said.

  Meanwhile, the expert witness, released from the bonds of courtroom decorum, said that the prosecutor’s line of questioning suggested that the government was living in denial about investigators’ ability to figure out what happened inside the Parks apartment during that fire.

  “It’s not that we’ve got better at doing that,” he said. “It’s that we know better today how badly we suck at it. Except these guys don’t seem to know that. . . . In 1992, we didn’t have the capacity to determine where the fucking fire started in a room that burns for ten minutes. We don’t have that capacity today. We used tarot cards then. We use bigger tarot cards now. We use tarot cards on our iPhones. But they’re still just tarot cards.”

  17

  Unhinged

  Habeas hearings are not for the faint of heart. Or the easily bored. The pace, at least in Los Angeles Superior Court, is analogous to LA traffic at rush hour: slow, frustrating, and subject to epic delays.

  The main problem is that, notwithstanding their high stakes, habeas proceedings are low priority in the justice system. This seems especially true within the insanely busy tower of crime that is the main criminal courts building in downtown Los Angeles. The Clara Shortridge Foltz Criminal Justice Center is a twenty-one-story, sixty-one-courtroom factory for dispensing justice in twenty thousand felony cases a year, named after the first woman allowed to practice law in California. This is where the annual crime-of-the-century trials play out in LA, from O. J. to Phil Spector to Michael Jackson’s doctor to Hollywood Madam Heidi Fleiss to the Night Stalker, in courtrooms equipped with the most uncomfortable, spinal curvature–inducing wooden benches ever devised. Less prominent trials with their speedy-trial mandate flow through here many times a day, along with massive amounts of potential jurors—ten thousand a month, jamming the meager bank of elevators. Change of plea hearings, sentencings, and time-consuming hearings for continuances and status checks come in a daily avalanche.

  Habeas proceedings, whose only constituency consists of convicted criminals, have no speedy-trial requirements and are generally viewed by the bean counters who keep the place more or less running as the criminal justice equivalent of a nuisance suit. There is only one judge and one courtroom set aside to hear all the complex habeas cases, as well as other unusual post-conviction matters. These other matters include an endless series of legally mandated resentencing hearings for convicts imprisoned under California’s harsh, 1990s-era Three Strikes repeat offender law, famous for its life sentences for such minor crimes as stealing a slice of pizza. Judge Ryan draws them all, but he also has to share a courtroom with another judge. What this amounts to for Jo Ann Parks and her case’s cast of characters is two days of court time a month. Judge Ryan starts no earlier than ten thirty in the morning due to sharing his courtroom with the daily calendaring judge, recesses at noon for the courthouse standard ninety-minute lunch break, then goes to four thirty P.M. before calling it a day. With the inevitable breaks and delays, innocence lawyers, prosecutors, and witnesses are lucky to get eight hours of court time a month to battle over Parks’s fate.

  This is how a hearing that could have been finished in ten consecutive full days in court instead began in October 2017 and continued through August 2018.

  Raquel Cohen spent the time in between poring over transcripts and reports, alternately consoling a sobbing Jo Ann Parks as she languished at county jail and tamping down her swings into exuberant hope and unrealistic expectations of a speedy release. As the next hearings approached, Cohen became obsessed with the lengthy report from the prosecution’s leading expert witness, a retired ATF agent with a storied career leading a National Response Team that swoops in to major bombings and fire disasters.

  Brian Hoback’s report on the Parks case had to be turned over to Cohen well in advance of his testimony, and she soon covered it with sticky notes, most of which contained the initialism WTF? She griped about having to create a clean copy for courtroom use.

  Hoback, it turned out, was the source of the new theory in the case that the sabotaged wires were not intended to start a fire, but were Parks’s way of creating the appearance of an acc
idental fire. Hoback’s report carefully constructs an alternate take on Ron Ablott and his work, a portrait that is diametrically opposed to Cohen’s harsh criticism of the retired investigator. The former ATF expert asserted that Ablott and his colleagues were careful, meticulous, unbiased, and, far from embracing the old myths of arson, conducted a thoroughly modern investigation that would pass muster today. In fact, Ablott might not have gone far enough, according to Hoback, who believed Parks probably had started a third fire in Ronnie Jr.’s bedroom as well as the girls’ room and the living room.

  Assuming an almost defiant stance, Hoback seemed to be saying that despite revelations of junk science used to lock up the innocent in other cases nationwide, there had been no real revolution in fire science, and therefore no need to re-evaluate the outcome in the Parks case. Ron Ablott had been brilliant, as Hoback saw it, and Jo Ann Parks was right where she belonged.

  It was this denial of a fire science revolution that most galled Cohen, because it was so unexpected and so contrary to what she believed had become mainstream thought. Then she began worrying that someone of Hoback’s stature might convince the judge that this position is valid. So she began searching desperately for some bit of evidence that this was more posturing than sincere belief from the prosecution experts, perhaps some sort of admission that they, too, had previously acknowledged a revolution had taken place. As the next hearing date neared, Cohen thought she might have found it, though doubts continually nagged at her.

  At the courthouse, tensions grew and once-collegial communications between the two sides became fraught. When the hearing resumed a month after Bieber’s testimony and both sides had gathered in the hallway outside Ryan’s courtroom, Cohen found herself sitting on a bench close to Hoback. She had just stowed her cellphone after talking with her daughter, who was home sick from school and ended the conversation by pleading, “I want you to come here and hug me, Mommy.” Hitching a smile on her face, she turned to Hoback and joked, “You don’t mind if I sit next to you, do you?”

  The normally affable Hoback blushed to the top of his balding head, then said in his soft Memphis accent, “Actually, I do.” And he got up and moved to a different seat.

  Civility took a few hits inside the courtroom, too, as the second expert for Parks took the stand.

  Veteran fire investigator David Smith of Bisbee, Arizona, with his rumpled khaki jacket and air of vague irritation at being there, had come late to the witness list. He was the stand-in for John Lentini, having been one of the co-authors of the 2012 Arson Review Committee report that provided much of the original basis for the court to grant Parks a habeas hearing in the first place. The report hadn’t aged well—it had some dated material in it about high carbon monoxide levels in fire victims proving flashover had occurred (an indicator that was debunked after the report was written), and it asserted that there was a back hallway in the Parks house that didn’t exist.

  At first, Smith defended the report’s finding under friendly questions from innocence project second-in-command Alex Simpson, and wrote off those errors as having no impact on the report’s conclusions. In anticipation of Hoback’s coming testimony, Smith, who has been investigating fires since the 1970s, said there definitely had been a revolution in fire investigation since the Parks case. Ablott’s claims that he could read burn patterns easily because there was no flashover proved that his work in the case did not reflect the new thinking, Smith said. Ablott simply could not have made the same conclusions in the Parks case if he had acknowledged that flashover occurred, Smith testified. And Ablott’s failure to consider the Parks television as a potential fire starter meant he lost the ability to credibly determine that the fire had been arson, according to Smith.

  “It would be absolutely improper to classify this as an incendiary fire if we have accidental ignition sources that have not been properly eliminated,” Smith told the judge.

  Later he and Judge Ryan had an exchange that unnerved the prosecution team. Smith, asked about the cognitive bias issues Bieber had detailed, asserted that walking into the fire scene and immediately seizing on “that jumble of wires” as an incendiary device suggested to him the original investigators entered with a predetermined finding of arson in mind. At that point, Ryan had interrupted the lawyers to ask his own questions.

  “Are you suggesting that it’s because of the bias you are describing that the investigator goes in, sees the cut wire, and has an Aha! moment?”

  “I do,” Smith responded, “if you mean the investigator has the idea that it’s an arson to begin with, then this fits in that Aha! moment.”

  “It fits the narrative that the investigator already has in his or her head?”

  “That’s right, Your Honor. . . . You have that in your mind . . . then you are going to attach everything you see that fits that preconceived idea . . . and discard the other stuff because it doesn’t fit.”

  With a chuckle and an unmistakable drawl of sarcasm, Ryan sat back in his chair and said, “What a surprise!”

  This seeming affirmation of a key innocence project claim had the two prosecutors exchanging worried looks. Members of the prosecution team of lawyers and experts would fret among themselves for months after that Ryan might be leaning in favor of Parks.

  Lead prosecutor Erika Jerez seized the opportunity to try to reverse their fortunes by hammering Smith on errors in the report. The expert soon began to sound ill-prepared and querulous, answering questions with questions of his own. He appeared unfamiliar with the report he had signed as a co-author, and misstated some of the findings. Cohen scribbled furiously on a notepad as she watched helplessly, feeling any advantage they had gained with Bieber’s testimony slipping away. Then Jerez sprung a trap on Smith, surprising him with evidence that much of the arson report he said he’d co-authored was a direct copy of another, earlier report prepared by a fire investigation company called Kodiak.

  Apparently others on the Arson Review Committee had reviewed Kodiak’s work on the case and then adopted the company’s conclusions and findings along with their own as drafts of the report were passed around among the committee members. All were working on the case for free at that point, using whatever resources they could cobble together, but Kodiak was not named as one of the final report authors. Jerez’s implication was clear: There was something shady about the report that was central to the habeas hearing being granted in the first place.

  Smith stammered that he knew Kodiak by reputation but had not known one of its investigators wrote parts of the Parks report. He said he had provided his own input in the form of comments, saying that these group efforts often had many contributors, but that each co-author had to review his colleagues’ findings and the evidence supporting them before signing off. After several rounds of comments and edits, a final version of the report was adopted.

  Despite the explanation, the prosecutor had scored a point. But when Jerez kept pressing Smith to admit this process had been improper, Ryan grew impatient, then interrupted.

  “I just want to say, for the record, it’s highly unlikely you will get a Perry Mason moment out of this witness,” Ryan said, naming the fictional lawyer who has become a mocking cliché in the nonfictional legal community for always and improbably getting malefactors to admit their guilt on the witness stand. “There is no jury present. . . . Save the attitude for argument.”

  Ryan had previously expressed occasional irritation at Jerez, contributing to the prosecution team’s worry that they were losing ground with the judge, but she did not take the judge’s hint about abandoning this line of testimony and moving on to the next topic. Instead she put up a slide on the courtroom monitor showing a side-by-side comparison of the Kodiak report and the final report filed in the Parks case. Ryan again interrupted, asking Smith if this origin of the first draft of the report mattered to him, or if he simply had adopted the Kodiak findings as he did with his named co-authors’ findings. S
mith did take the hint: No, it didn’t matter, he said, and yes, he did adopt the conclusions.

  Jerez was livid. “It’s plagiarism, Your Honor!”

  Judge Ryan shrugged. “Which is not a crime. If he adopts the conclusions, they become his. . . . I think it’s fair for you to confront him with it. But I don’t think it’s a Perry Mason moment.”

  Later, during a discussion of possible motives for Parks to set fire to her house, Jerez brought up a newly discovered taped police interview with one of Parks’s half sisters, presumably made years after the fire. On the tape, the sister recalled Parks talking about what had happened, and saying that when she heard Ronnie Jr. screaming for help during the fire, he called out to his grandmother instead of her. Parks allegedly told her sister that made her angry.

  “Is that not potential evidence of motive to commit a fire?” Jerez asked Smith.

  Smith looked genuinely puzzled. “We are indicating the fire is already going?”

  Jerez shook her head. “The statement didn’t specifically state one way or the other. The statement was during the fire . . .”

  Ryan interrupted. “That would mean the fire was already going unless during means something different to you than the rest of the people in the community.”

  Jerez said, “With all due respect, Your Honor . . .”

  Ryan broke in again. His manner had changed. His normally droopy hound’s eyes were narrowed. “Don’t ever start a sentence with ‘all due respect,’” he said, “because everyone knows what you really mean is, ‘Look, you moron.’”

  The horrified prosecutor sputtered that she meant no such thing, then tried to salvage the point by asking again if that statement showed Jo Ann Parks had expressed a motive to kill, at least according to her estranged sister’s recollection.