by Edward Humes
“Of course not,” Smith answered. “The fire is already going, and something makes her mad, so that’s why she set the fire before it made her mad?”
Jerez surrendered a few moments later and ended the cross-examination. Then the prosecution team hurried from the courtroom to the elevator bank. Ed Nordskog said he worried that they may have just lost their case and that Jo Ann Parks was going to walk.
Raquel Cohen did not see it that way. She thought much of David Smith’s testimony had been shaky and vague. She worried he had come across at times as both condescending and unprepared. Only the prosecution’s ability to irritate the judge had saved the day.
Her co-counsel Alex Simpson was more upbeat. In a long and complex hearing, he said, the overall impressions and basic takeaways are critical. Smith would end up spending three days on the witness stand. What would the judge remember of all that? Simpson suggested that the judge would most likely recall that the prosecution had focused overmuch on who wrote a report, but had not disproved its or Smith’s fundamental conclusions: that flashover had occurred and had been ignored by the original investigation, and that those same investigators entered the fire scene with preconceived notions.
Cohen still looked grim as the defense team of lawyers, interns, and Parks’s surrogate family lined up at the elevators. “I hope you’re right,” she said, then dialed home to see how the kids were doing.
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At the end of January 2018, four months after the habeas hearing began, the last witness for Jo Ann Parks arrived from Kentucky on a mission to shake things up. He’d either win the case outright, Raquel Cohen figured, or they might as well just pack up and leave. The fireworks between judge and prosecutor notwithstanding, Cohen felt if the innocence project case had ended after David Smith’s appearance, the outcome would be too close to call.
Paul Bieber’s bias testimony was interesting enough—but even he had to admit that a biased investigator, the blindfolded dart player, could still hit the mark. And Smith had adequately explained what he believed were the Parks investigation’s shortcomings and fatal errors, but he had also been halting, forgetful, and hostile. When the prosecution experts’ turn came next to testify, they could fight the evidence so far to a tie, Cohen feared. And then the prosecution would argue that there was no justification for overturning the trial verdict because all we have here are a bunch of fire experts agreeing to disagree, just as happened at the original trial in 1993, because that’s what experts do.
That take on the case was the very definition of a tie, Cohen knew, and ties always favor the status quo rather than upsetting the apple cart.
Now Dr. Greg Gorbett would take the stand, with the promise of bringing something new to the courtroom—a visual analysis of the fire no one else had done, which he assured Cohen would turn those impenetrable photos of sooty, charred burn patterns into an easy-to-grasp graphic that would prove the case against Parks was scientifically indefensible.
“Absolutely,” he assured Cohen during their pre-hearing discussions. “There’s no question.”
Gorbett, a fire science expert and a professor at Eastern Kentucky University, directs the nation’s first and only undergraduate degree program in fire investigation. Unlike controversial figures such as John Lentini, the affable Gorbett appears to get along with all factions in fire investigation circles. In addition to university teaching, he researches the behavior of fire and fire investigators, works on wrongful convictions, investigates fire scenes as a consultant, and conducts seminars and burn exercise sessions aimed at helping credentialed fire investigators deal with flashover and build scientifically sound cases.
Alone among the many experts who have examined and opined on the burning of the Parks home, Gorbett decided to make sense of the complexities of the fire at 6928 ½ Sherman Way by creating a heat and flame vector analysis. That may sound like a complex and esoteric scientific process, Gorbett says, but that’s just the name: Visually it is a simple way of diagramming a fire’s burn patterns, making a large amount of confusing data and disturbing pictures understandable at a glance—and revealing fire behavior that might otherwise be missed.
Gorbett, in essence, produced a road map of that 1989 fire in Bell—which, if accepted by the court as accurate, would be the map to freedom for Jo Ann Parks, depicting a house fire with a closet door likely open, no evidence of a second fire, and no scientifically sound way to conclude a crime even occurred.
The map was shockingly simple in concept. Scrutinizing all the photos of the fire scene, Gorbett studied one room at a time, examining each surface in that room: wall, door, ceiling, floor, furniture, even bodies. The house was burned so extensively that each surface had multiple burn patterns and damage on it. Looking at a wall, an area nearest the entryway into the room might be the most damaged, because that’s where the fire entered from an adjacent room. The point farthest from the door likely would have the least damage on that wall. Gorbett then would draw a vector (the fancy science word for an arrow) pointing from the area of greatest damage toward the least damage. Now the path of fire along that particular area of the wall is clearly revealed. Then he repeats that process for every surface in every room. What is revealed is the path fire and heat took, and that, in turn, allows some determination to be made about where the fire originated. This is a method that can help overcome the problem Steve Carman’s burn-cell exercises revealed.
In a simple fire, one without flashover or full-room involvement, or one that is extinguished quickly after the onset of flashover, the vector road map is often simple and the area of origin well defined. Most fire investigators do this analysis in their heads, if they do it at all. But in complicated fire scenes, such as the Parks fire, the road map is incredibly complex and impossible to keep clear without a physical chart. Yet very few fire investigators use this method. No one in 1989 did it in the Parks case, and no expert other than Gorbett did it for the latest hearing.
“It should be, but it’s not universally done,” Gorbett testified. “This is a complex problem we are trying to solve. . . . I think some people thought that it takes [too much] time.”
Another problem with doing this analysis in your head, Gorbett added, is that there often is too much data to remember, and there is the risk that cognitive bias would trick an investigator into remembering only the vectors that supported his or her theory, and none of the conflicting data. He suggested that was part of the problem with the Parks case; Ablott had testified that his method was to poke charred areas with a penknife and keep the measurements in his head. Gorbett found this doubly problematic because the penknife method is known to be highly inaccurate and because no one could remember all the measurements needed in the Parks fire without recording them in some way.
So Gorbett used his map to take Judge Ryan for a ride through the Parks house from the flame’s point of view, starting with arrows superimposed on photos of the blackened, ruined interior of the house, and ending with a simple floor plan with red arrows showing the movement of heat and flame.
He showed Ryan how the fire spread from the living room and kitchen-dining area into the girls’ bedroom, but how lower down, damage near the girls’ door showed heat or flame moving from inside the bedroom back into the kitchen. It was that second pattern that helped convince Ablott that a second fire had been started in the girls’ bedroom, which, if true, would powerfully support the case for arson.
At the trial, the defense tried to explain away a possible second fire near RoAnn’s bed as the result of flaming debris or tiles falling from the ceiling that started a secondary fire after the rest of the house was already aflame. But Gorbett and his map showed a simpler explanation: The tiny garage conversion had abnormally large windows, big enough for a mansion. There were two such big windows in the girls’ bedroom. When they broke, the influx of air from outside plunged down into the room, while hot smoke and f
lame vented up and out, creating swirling, chaotic, and conflicting flows of air, heat, and flame in the room.
“Those two very large windows . . . when they fail, they are going to turn the fire back around,” Gorbett explained. That swirling phenomenon is a ventilation effect that is now known and predictable, and Gorbett explained how it could have created patterns in the room, on the bed, and on RoAnn’s body that the prosecution falsely claimed could only have occurred because a separate fire was set in that bedroom.
Gorbett explained that fire scientists and investigators did not fully understand this phenomenon in 1989. The full impact of ventilation and flashover on fire scenes and origin and cause investigations was not made clear until a seminal research paper was published on the topic in 2008. Gorbett told the judge he knew Ablott mistook ventilation effects for a second point of origin because his vector map showed far too little damage for a separate fire to have started in that room.
Ronnie Jr.’s bedroom had similar conflicting patterns, with fire moving in from the living room and out from the bedroom door when the three huge windows in the room failed. Not only did this massive amount of ventilation from all the windows stoke the fire to flashover in most rooms of the house, Gorbett concluded, but the burn patterns and damage caused by the ventilation effectively masked the true area of origin of the fire.
When all the areas of damage and airflows were mapped out, Gorbett found, it was impossible to narrow down the area of origin for the fire through a scientific analysis. It could have started anywhere in the living room, the kitchen, or in the area around Ronnie’s closet and produced exactly the same burn patterns and vectors his map revealed. What Ablott saw as an area of origin in the living room was a pattern generated by massive ventilation through the shattered living room windows, he said. There is no way to determine if the fire began there, or if it spread there from another location.
“So our area of origin has to go more broad. It can’t go more narrow when we have all these complications. . . . The more narrow you go, the more likely you are going to be wrong. To say we can find multiple origins in that is just scientifically not defensible.”
In short, Gorbett’s analysis meant Ablott’s determination of the area of origin under the living room windows cannot be justified. Had there been proof that the television or electrical wires had started the blaze, that would have made narrowing the origin area possible. But the wires were disproved as an ignition source, and the TV was not properly analyzed. And no other possibilities elsewhere in the house were checked because Ablott incorrectly narrowed the area of origin to be searched.
Prosecutor Jerez asked Gorbett to consider Hoback’s theory that the “sabotaged” wires were put in place to mislead investigators into declaring the fire an accident, and she wondered whether that information could be used to narrow the origin area.
No, Gorbett said. He had been unimpressed by the government’s ideas about the wires—in 1989, as well as 2018. Damaged electrical wires are found all the time in fire scenes and under windows, he said. When the original theory that tampered wires started the fire was disproved, he said, investigators should have expanded their area of origin and searched for other ignition sources. Instead, they leapt right to concluding Parks must have set the fire by hand as the only possibility.
As for Hoback’s new theory about staging the cords in order to trick investigators, Gorbett accused the government of spinning one theory after another in order to “have it both ways.” First Parks is too incompetent an arsonist to construct a working incendiary device, he said, then she’s so brilliant she’s plotting to trick investigators into an erroneous conclusion that the fire was accidental.
“It didn’t make sense to me at all how you can instantly flip something to make it still seem suspicious,” he complained.
As for whether the findings of other points of origin in either bedroom by Ablott and Hoback could be justified scientifically, Gorbett said, “Absolutely not. We just don’t have the science to do that.”
Jerez tried to blunt the impact of Gorbett’s testimony by asserting that a field investigator who visits a fire scene in person always has the advantage over experts who come late to the case and only have photos to work with. Wasn’t Ablott in the best position to make the call?
Gorbett could have pointed out that this “home-court” advantage was not inevitable but instead a deliberate tactic by the government, which had prevented anyone else from investigating the scene by destroying evidence and letting the house be torn down before any charges were filed. Instead, he denied there was any advantage at all, saying photographs, particularly flash photography, can reveal details that are missed during a visual inspection at the scene.
“And if a photograph does not capture the entire scene?” Jerez asked, sensing an opening.
But Gorbett turned that back on her, too, saying if there were missing images then the field investigator did a poor job. Every significant image and bit of data that has a bearing on the case should be documented.
“So long as it’s done correctly, then you should be able to do it sitting behind a computer without actually going to the scene.”
Jerez switched to another line of attack, asserting his analysis was just another opinion among many. “Wouldn’t you say . . . fire pattern analysis is somewhat subjective?”
“That’s the problem. It’s really not,” he said. “It shouldn’t be subjective at all. . . . Part of the problem right now in the profession is that people still think that they can do that. . . . There should never be a discrepancy between two experts saying this is charred and this is not charred. . . . We should see the same stuff.”
Next the prosecutor tried to shake Gorbett’s contention that the understanding of flashover and the impact of ventilation had only become clear to mainstream fire investigators in recent years. Jerez cited several older journal articles dating back to the 1980s that mentioned the idea. Didn’t this mean the science hadn’t really changed after all since the Parks fire and, therefore, there was no reason to grant her a new trial?
Gorbett shook his head. A few obscure journal articles no one but a few engineers read did not mean these ideas were accepted or understood by the fire investigation community, he said. No one was taking the true impact of ventilation into account in their investigations at the time of the Parks fire, he added. “It was definitely on the fringe.”
More important, he said, it was obvious from his work on the Parks case that Ablott lacked the knowledge of the true impact of changing ventilation on interpretation of fire patterns.
“There is a difference between knowing the data and being able to properly analyze the data. . . . That’s where they were missing the boat in the Parks case. . . . If they could not recognize that [flashover and] full-room involvement occurred, they could not recognize the impact ventilation has.”
Gorbett testified that in the years following the Parks fire, there had been mainstream acceptance of a list of eight indicators that flashover occurred in a fire. Not all of the indicators have to be present to conclude there was flashover, but the more there are, the more confident the conclusion can be. These indicators are straightforward and not subjective, and most of them were present in the Parks apartment:
Witnesses seeing flames extending out of openings.
Hot gas layer descending to the floor.
Window breakage.
Floor to ceiling charring/thermal damage.
All ignitable fuels in the compartment exhibit burn damage.
Widespread burning at floor level.
Charring under doors.
Absence of a line of demarcation (a line separating two fire effects, such as a horizontal line on a wall that marks how far down the hot gas layer in a room extended).
When Gorbett described this list as a relatively recent creation, develop
ed long after the Parks fire, Jerez went on the attack again. She accused him of cribbing this list from a 1986 video played for jurors in the original Parks trial—which, she said, meant it was neither new to the case nor new science.
A puzzled Gorbett said no, the list came from a 2010 ATF training video and was, in fact, based on new science about fire behavior developed twenty years after the Parks fire.
Before Jerez could challenge that, an exasperated Judge Ryan shook his head and told the prosecutor he recalled the films and that she had gotten it wrong. “It was a different video.”
Finally, Jerez bewildered Gorbett by asking him to consider a hypothetical in which a second fire was set in the girls’ bedroom, and if that would convince him the house fire was arson.
“I think the entire gist of my testimony is that you are unable to do that,” Gorbett said, reminding her that he had specifically found no evidence that would justify such a finding. “The science does not allow that.”
When Jerez persisted, Judge Ryan, who had already warned the prosecutor a third time about trying to be Perry Mason and a second time for starting a sentence with “all due respect,” got exasperated. “Isn’t that what this whole hearing is about? That sort of begs the question. He just testified science doesn’t provide it. You are asking him to assume something contrary to physics. Is that what your question is, to assume something contrary to the evidence?”
Jerez said it was the government’s position that science does support such a finding.
“That’s lovely,” the judge said, putting a firm stop to any more questions on this topic. “But we haven’t heard that evidence yet.”
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