by Edward Humes
• • •
Some of Gorbett’s most dramatic testimony did not come directly out of his mapping analysis, but focused instead on his observations of the closet door in Ronnie Jr.’s room. As at the original trial, the prosecution in the habeas case was relying on the barricading of the little boy during the fire as its most powerful evidence of Parks’s criminal intent, and one that prosecutors considered fairly bulletproof, in that it could not be written off as a flashover error.
Gorbett, however, again came up with some new observations, once again faulting the prosecution for ignoring clear evidence that should have led them to a different and less incriminating conclusion about that closet.
First he found burn patterns moving across the bedroom wall and across the closet. If the door was closed, that diagonal pattern—the line of demarcation—should have continued unbroken across the front of the door. It did not. But a picture of the open door showed that line continued across the inner side of the closet door, suggesting it was open during the fire.
Next he observed severe charring on the inside stile of the door on the hinge side, which should have been protected if the closet had been closed. A picture of the door in the closed position shows severe charring along the edge of the door where it fits into the closet doorjamb. That area should have been protected had the door been closed. The carpet that a closed door would be over should have been protected from fire, but it was not, photographs showed.
Most dramatically, he took on the government’s analysis of the door hinges as showing mirror-image fire damage that proved the door had to be shut during the fire. The hinges were supposed to be the government’s most powerful evidence that the closet door was closed, since the eyewitness accounts by police and prosecutors had been deemed unreliable in the first trial.
Gorbett said the government’s analysis was dead wrong.
What the prosecution expert was seeing on those hinges was not mirroring, but the heat transfer marks of the screws that hold the hinge plates to the door. The screws are mounted in wood and as the wood burns, the screws heat up and cause damage to the hinge plate where the screw heads are seated.
“We have twenty burn rooms at EKU [Eastern Kentucky University] with hinges. Every single one of those has that same mirror image, and it’s not because the doors were closed. It’s the heat transmission.”
The hinges in the Parks case, he concluded, tell us nothing. This was new evidence, based on data Gorbett collected during live burn exercises at his university. If the judge accepted it as accurate, and the government failed to rebut it, the proof that Ronnie had been blocked inside the closet no longer held water.
Gorbett also dismissed the prosecution’s one other piece of evidence that the door was shut: the government’s assertion that because Ronnie’s hair was not burned off, the door could not have been open during the fire.
Gorbett described an equally probable alternative that incriminated no one: He said the boy had clothing piled on top of him in the closet, as photos clearly showed. The material either fell, or the boy burrowed. In any case, it was sufficient to provide protection to his hair and much of his body even with the door open. Gorbett pointed out that the older girl, RoAnn, also had hair that had not burned entirely simply because one side of her head was lying on the mattress.
He concluded it was impossible to say if the door was open or closed with any scientific certainty, which meant the government’s theory on the closet was unprovable and unscientific.
“There is too much evidence that is inconsistent with this door being closed,” he said, adding that this is one of many times the prosecution adopted a level of certainty that science and data could not justify.
Finally, he dismissed as physically impossible the prosecution’s theory about a wicker hamper barricading the closet door. Ablott’s theory, adopted by the current prosecution experts, was that with the closet closed, the bottom of the door showed very little burn damage. The reason for that, according to the prosecution, was that the hamper barricade protected the lower part of the door from the flames. Gorbett found that ridiculous, as had Robert Lowe twenty-six years earlier.
“It was a wicker basket that combusts quickly, putting off a lot of heat. . . . It would in fact cause damage to the closet door.” Burning objects, in short, do not protect other surfaces from heat and flames. They cause them to burn, he said—and to exhibit burn damage.
He concluded his testimony by seeking to provide the proof that the innocence project had promised the judge in its pleadings and arguments: that the case against Jo Ann Parks was built on a web of false evidence and biased expert certainty in opinions unsupported by science.
“The area of origin is basically the center east portion of the entire house,” Gorbett said. “That is the best scientifically we can do. That is from fire patterns, fire dynamics, and witness statements. Because of that, we cannot determine multiple fires.
“It could be a single natural outgrowth of a single fire that has all these different effects that people are interpreting incorrectly. We cannot establish multiple fires. Because of that, the only proper listing for the cause of the fire is ‘Undetermined.’”
Gorbett looked at the judge as he spoke. His testimony, if persuasive, meant the finding that the fire was set deliberately could not be justified. If the judge bought Gorbett’s analysis, it meant the burden under the law of habeas corpus had been met. If his views won out over the prosecution’s, it meant there was no proof a crime had been committed.
With that, the lawyers for Jo Ann Parks rested their case.
18
What Revolution?
After months of being berated and worn down by a judge they perceived as hostile to their cause, the prosecution team launched its side of the case with its surprising strategy: the claim that there had been no scientific revolution in fire investigation, and there was therefore no reason to overturn the verdict in Jo Ann Parks’s case.
Even Judge Ryan seemed taken aback when Deputy DA Jerez launched her opening statement with this bold contention. He expected all her other points: that the prosecution experts would confirm that the fire was deliberately set, that there were multiple areas of origin, that a child had been barricaded in the closet, that there was a tampered electrical cord, and that all possible accidental causes of the fire were satisfactorily eliminated. In short, the original investigation got it right in every essential way. Those parts the judge saw coming.
But then Jerez delivered her bombshell: “You will see from the testimony of respondent’s experts that the science fundamentally has not changed. Petitioner has failed in her burden to prove that there are significant changes in any of the science fundamentally underlying her conviction.”
To the judge, it was as if she was saying the past three months of testimony had not taken place.
“You are essentially telling me,” he asked, “that the science that was used at the time of the investigation is still the current science?”
Jerez said that was exactly what she was saying.
This was bold for many reasons, not the least of which is the fact that Cohen had provided the court a list of other arson cases in which judges had ruled the opposite. Jerez was asking Judge Ryan to ignore such cases as the conviction of Han Tak Lee. Lee had been imprisoned for murdering his daughter in an arson fire in Pennsylvania in July 1989, just three months after the Parks fire. He served twenty-four years before he was exonerated and released a year before Parks filed her habeas petition. The judge who freed him wrote an opinion that began with an extraordinary account of the very scientific revolution Jerez claimed had not occurred:
“Slow and painful has been man’s progress from magic to law.”
This proverb, inscribed at the University of Pennsylvania Law School on the statue of Hsieh-Chai, a mythological Chinese beast who was endowed with the faculty of discerning the guilty, i
s a fitting metaphor for both the progress of the law and the history of this case. . . . Sometimes, with the benefit of insight gained over time, we learn that what was once regarded as truth is myth, and what was once accepted as science is superstition.
So it is in this case.
In 1990, Han Tak Lee was convicted of arson and murder in connection with the death of his daughter, Ji Yun Lee . . . upon what was at the time undisputed scientific evidence concerning the source and origin of this fire.
Today, with the benefit of extraordinary progress in human knowledge regarding fire science over the past two decades it is now uncontested that this fire science evidence . . . is invalid, and that much of what was presented to Lee’s jury as science is now conceded to be little more than superstition.
* * *
• • •
Initially, Ryan’s seeming impatience with the prosecution continued as Jerez began presenting her case. The judge forced her to cut her opening presentation to a fraction of what she intended to present, berating her for injecting closing arguments into her opening statement, which is supposed to simply preview the evidence she intends to present.
“You’re killing me with these details,” he chastised. “This is not a jury trial, and this is all argumentative. Just tell me what your witnesses will testify to.”
Such an interruption and curtailing of an attorney’s opening statement in midstream is never a good sign. It flustered Jerez, who had to scramble to skip over dozens of slides she had wanted to show the judge, while the rest of her team sat grim-faced, staring down at their files or their hands or exchanging looks—anything but watching their colleague’s discomfort.
But then Jerez finished and Brian Hoback took the stand. The tone changed almost immediately. With his soft, slow Memphis drawl and tendency to blush bright red, the former ATF investigator’s lack of experience as a witness and “yes, ma’am” and “no, ma’am” answers charmed the judge and many others in the courtroom. For the first time, the prosecution team saw a receptive audience in Judge Ryan as Hoback settled in. There were fewer interruptions from the bench. Ryan joked with Hoback. The prosecution team sensed it, and so did Cohen and her innocence project team.
Suddenly, after Gorbett’s seeming triumph, it was anybody’s game again.
As Jerez had promised, Hoback asserted that there had been no revolution in the arson investigation field. Knowledge had expanded, of course. Techniques had improved. Old myths had been discarded. He even conceded that the original investigation could have been better documented and photographed. But in the end, nothing consequential had changed in the science of fire investigation, and in his view, Ron Ablott and his colleagues had done everything right. The man who had spoken of NFPA 921 with contempt and never read it, and who had investigated the Parks fire scene as if flashover had not occurred had, in Hoback’s view, followed modern principles to the letter.
“They did not fall into the traps, as some had of that time, of equating old myths as proof of something criminal,” Hoback concluded.
In his report on the case, Hoback only mentioned once that he disagreed with Ablott’s finding that there had been no flashover in the Parks fire, but he asserted that it didn’t matter and had no effect on the validity of Ablott’s conclusions. This position left Cohen beside herself, for it went to the heart of her case, as well as contradicting the widely hailed work of John Lentini dating back to the Lime Street fire.
Whereas Gorbett and Cohen’s other experts had been adamant that failure to account for flashover rendered Ablott’s findings about the fire’s origin and cause worthless, Hoback insisted that the fact that flashover occurred simply meant that you had to “be more careful” and “think twice” when charting the progress of a fire. He insisted Ablott had done exactly that in the original investigation, and his own careful analysis confirmed each and every one of Ablott’s reasons for determining that this was a case of arson and murder.
He took pains to explain that, far from suffering from bias, Ablott had taken a deliberate approach to the Parks case, visiting the scene multiple times and withholding final judgment for months. In Hoback’s view, sending the wiring to an electrical engineering expert and learning that the supposedly sabotaged cord was not the cause of the fire did not highlight Ablott’s investigative mistakes, but his willingness to revise his thinking.
But as he explained the reasoning behind his endorsement of Ablott’s investigation, weaknesses in Hoback’s analysis emerged.
In creating a timeline for the fire that supported his belief that Parks had ample time to start a separate fire in the girls’ bedroom, he did not mention the testimony of Tuxedo Man, who saw indicators of flashover elsewhere in the house long before Hoback’s scenario allowed.
In rejecting as untruthful Officer Bruce’s information about the lack of fire in the girls’ bedroom when he arrived at the scene, Hoback did not account for the police interview of neighbor Lloyd Powell, who had corroborated most of Bruce’s account. And in insisting the closet door was closed, Hoback appeared not to consider Ablott’s reluctant testimony under cross-examination in the original trial that the door was partially open.
Hoback never mentioned this oddity buried in the mounds of transcripts from the original trial, though it contradicts the position that the prosecution has maintained across three decades: that the closet door was shut with the hamper pressed against it during the fire. Ablott in later years has even recalled that the hamper left behind telltale patterns on the surface from contact with the door. Hoback adopted Ablott’s version of events, but no such thing is apparent in the photos. And though it was ignored and forgotten over time, the transcripts show that Ablott admitted during Parks’s original trial that the protection patterns in the carpet proved that if the hamper was there, then there was a gap rather than direct contact with the closet door—a gap of as great as three inches between them.
Which begs a question: Could that hamper truly have been a barricade? Or could a slim preschooler squeeze through that space, especially if he leaned his weight against the door and the hamper rocked back? Hoback never addressed this possibility.
Hoback’s insistence that the closet door in Ronnie’s bedroom was closed and barricaded was also based on his analysis of the door hinges—a type of analysis he had never done before the Parks case. Hoback testified that he followed instructions for analyzing hinges published in an authoritative text, Scientific Protocols for Fire Investigation, authored by John Lentini. Lentini later reviewed Hoback’s work on the hinges and reached the same conclusion Gorbett did: Hoback was wrong, there was no mirroring present, and the hinges were worthless as evidence.
Hoback said his hinge analysis and belief that the closet door was closed during the fire was bolstered by eyewitnesses. But this support is a reference to the testimony of Dirk Wegner, the first firefighter to enter the house, and the recollections of the first policeman to arrive, Bell police reserve officer Timothy McGee. Hoback seemed unaware that these witnesses had contradicted themselves and each other in their testimony, and that the original trial prosecutor had finally stated in open court that their testimony had no credibility—an admission that Jerez had even quoted in her response to Cohen’s habeas petition. Hoback was relying on information that had been repudiated in the first trial. There were no witnesses who could reliably recall whether the door was open or shut during the fire.
As for the sabotaged wiring—what in the original trial was termed the “failed incendiary device”—Hoback, like the rest of the prosecution team, described it as an electrical extension cord that had been cut or sawed, then wrapped in drapery. Hoback went on to explain his theory of the significance of this discovery, contradicting Ablott with his own new idea:
“The fire setter wanted the fire investigators to believe that this fire was an accidental fire. Thus, placing the ‘cut’ and ‘sawed’ electrical cords within drapery material
and placing those cords that are wrapped in the material underneath the boxes in the living room near the north wall. Once the electrical cords were found, then the theoretically lazy fire investigator assumes it was an electrical fire, seeing the melted cords underneath the boxes which were pinched and caused a fire. That scenario has been seen before in reference to this case. It was at Mrs. Parks’s house fire approximately one year prior to this fire.”
In his earlier testimony, Gorbett derided this idea as a kind of “have it both ways” flip-flop unsupported by evidence, but the problem with this testimony goes deeper. For years—decades, really—the prosecution had consistently pushed a misleading description of this “device.” Once again, buried in the transcripts from the original trial, there is a description of what was really found at the fire scene. Ablott admitted that the cuts in the wires he found so suspicious—and that he originally believed had caused a deliberate short circuit that started the fire—were on a length of an extension cord with no drapery wrapped around it, which makes it hard to imagine this as “a device.” Another small section of the wire dubbed “the octopus” really was wrapped in a bit of drapery, according to evidence photos and testimony—but not the cut parts.
For all the possible shortcomings in his analysis, Hoback nevertheless remained one of the more impressive witnesses to testify. He stayed calm and unwavering when questioned by the innocence project lawyers. Although he had no new science or technique behind him, as Gorbett had with his vector analysis, Hoback’s genteel, steady, reasonable manner held the judge’s attention. He had been nervous about being cross-examined—Hoback had not testified in more than a decade before taking the stand in the Parks case—but nothing could shake him from his opinion that Parks was a killer.
“An analysis of an investigation should be to find the truth,” Hoback concluded in his written report, which he quoted in his testimony. “This author believes the investigators in 1989 through the 1993 trial did indeed find the truth.”
