Burned

by Edward Humes

  The prosecution’s other experts, fire science specialist Jamie Lord and Los Angeles County Sheriff’s arson investigator Ed Nordskog, backed up Hobart’s testimony, agreeing that there was ample evidence that the fire had been deliberately set.

  Lord, a flashover expert, surprised the courtroom by saying that he agreed with almost all of defense expert Greg Gorbett’s findings. He disagreed with just four vectors on Gorbett’s fire map, only one of which he deemed significant. But by altering that one arrow, Lord revealed what he said was a pattern that provided strong support for the theory that a second, separate fire had been set in the girls’ room.

  In his testimony, Nordskog parted company with Hoback on the cut wiring, arguing that it had, in fact, been constructed to start a fire, but failed because its builder didn’t know what she was doing. He continued to describe a “device” that consisted of cuts in a wire wrapped in drapery, despite the absence of any testimony or photographs to prove that such a thing was found, and Ablott’s clear, if buried, testimony that he found no such thing. Nordskog later explained that the wrapping was not what convinced him that the cords had been used to try to set a fire. He found the deliberate cut marks and placement of the cords to be the definitive evidence of sabotage.

  Nordskog also described in detail his analysis of burn patterns on the children’s bodies. With gruesome pictures of the small corpses at the fire scene and in the morgue displayed on courtroom screens, he pointed out how the relative lack of severe burning on Ronnie’s body suggested the closet door had to be shut. Then he turned to the multidirectional burn patterns on RoAnn’s body, which he said provided clear evidence of a second fire set in the room and spreading outward. He criticized the innocence project’s experts for not taking this into consideration.

  Gorbett, however, had previously testified that he had looked at the patterns on the bodies and he found that they no more proved a second fire had been set in the room than any of the other burn patterns found and photographed in that room. He said the same swirling, multidirectional air and heat currents caused by the massive windows breaking in the room created both the conflicting patterns on the bed and walls, and on RoAnn’s body as well. It was the same ventilation-controlled phenomenon at work—missed by Ablott, and now missed by Nordskog as well, according to Gorbett.

  When asked why he had not included an analysis of burn patterns on the bodies in his fire map presentation, Gorbett had shaken his head in disgust. He said he didn’t feel the need to parade upsetting images of dead children to illustrate a point that could be made just as effectively with comparable burn patterns on the bed and walls.

  Indeed, Parks had been covering her face with her hands and appeared to be sobbing quietly throughout this portion of Nordskog’s testimony, until Judge Ryan glanced over, held up his hand to quiet the witness, and asked Cohen if her client would rather sit out the rest of this testimony. Parks looked up and nodded and mouthed the word yes, and the bailiff cuffed her and took her to the lockup.

  “I should have caught that before,” the judge said. “It didn’t occur to me.”

  Nordskog was unfazed, as he’s convinced that Parks is a manipulative child killer who fits the profile of a serial arsonist, and that such emotional displays cannot be taken at face value. He went on to testify that he found it highly suspicious and unnatural that a child RoAnn’s age would not get up and try to flee the fire at some point. He had previously opined in his report that the girls had been drugged, notwithstanding negative autopsy results for drugging.

  “They’re old enough to flee,” he told Judge Ryan. “If they’re conscious.”

  Lord and Nordskog both insisted, as Hoback did, that there had been no major changes in fire science that could undermine Ablott’s investigation or Parks’s conviction. Some myths were exposed, particularly ones that led investigators to mistakenly conclude that ignitable liquids such as gasoline had been used, but the prosecution witnesses said none of those old myths applied to the Parks investigation. As far as the Parks fire was concerned, there had been no fire science revolution, they agreed, just a gradual evolution that didn’t require changing a single finding in the case.

  At the end of the prosecution’s presentation, however, Alex Simpson asked Nordskog, “Would you agree that the fire scientists . . . made investigators such as yourself realize that a lot of what arson investigators believed and were taught was absolutely wrong?”

  Simpson got the answer he and Cohen had hoped they’d get. Nordskog said, “To say ‘a lot’ is an exaggeration.”

  At the conclusion of the case, Cohen would file with the judge a copy of a 2016 article from the Los Angeles Times quoting Nordskog on this very topic: “The arson industry was turned on its head twenty-five years ago when fire scientists got involved and realized a lot of what arson investigators believed and were taught was absolutely wrong, scientifically not correct,” Nordskog had told columnist Patt Morrison less than two years earlier. “And the scientists have come a long way in fixing that part of the industry.”

  Nordskog was the final witness. And with his exit from the courtroom, only the final arguments remained. These would be a last attempt by each side to convince the judge that something monstrous happened in this case—a pair of alternate realities rather than nuanced differences.

  “There is no new scientific research that applies to this case that undermines this conviction,” prosecutor Jerez assured the judge. “This is fatal to the false evidence claim.”

  “Every day we ask jurors to put aside their gut feelings and to pay attention to the evidence,” Cohen countered. “But the investigators did not do that in this case. This investigation was riddled with bias. And this conviction was based on unsupported evidence, bias, and nonscientific investigation.”

  With that, the case went to the judge. He would wade through the documents and testimony searching for firm footing amid the ambiguous evidence and opposing expert testimony. He would have to decide if false information and cognitive bias led to Jo Ann Parks’s conviction, or if the original investigation held up nearly thirty years later.

  Had the prosecution raised enough doubt about the innocence project’s claims, turning the proceeding into a case of dueling experts with no side clearly ahead on points? If so, the conviction would stand.

  Or had the innocence project team succeeded in showing that no unbiased fire investigation could possibly tell where or how the fire started, or whether a child had been trapped inside a closet? If so, then the judge would not only have to release Parks. He would also have to find that there was insufficient evidence that any crime had been committed at all.

  Judge Ryan smiled as each side rested, thanked the attorneys for an interesting presentation, and gaveled the proceedings to a close. He offered not a single clue as to which way he might rule, other than saying that they had given him a great deal to think about.

  * * *

  • • •

  As the testimony moved toward wrapping up in May 2018, Jo Ann Parks had become convinced that the judge would order her set free in time for her to read her essay at the talent show. It had become her dream. She told her friends to stop depositing money in her commissary account, and asked them to bring some clothes to the jail for when she was released.

  It fell to Raquel Cohen to try to roll back those expectations. Yes, she said, the testimony would end in early May, but then there would be oral arguments and briefs to file, and then the judge could take months to rule if he wanted to. Yes, it was possible he could rule from the bench then and there. Possible, but unlikely.

  She also had to remind her client once again that all Judge Ryan could do, if they won, was erase her conviction and grant a new trial. Then he might set bail. But he also might not allow her release while awaiting trial. The district attorney could, and probably would, appeal Ryan’s order if he overturned the conviction. The appeals process that ensues from t
hat would add more years to her confinement. She had to steel herself.

  Her fantasy of reading her essay at the Los Angeles Athletic Club—along with the dreams of freedom with which she ended that essay after twenty-seven years in prison—faded for the time being.

  “I’ll wait,” she told her lawyer. “I’m good at that.”

  OUTSIDE

  My thoughts about the outside is the smell of fresh air. Seeing large green trees and the smell of different flowers in the air. Seeing all the buildings and signs, some old ones, some new. Watch all the different colors and styles of cars as they pass by. To feel the air against my face. My hair blowing in the wind.

  Going to the beach for my first time hearing the crashing of the waves, the seagulls’ squawk, the smell of the ocean’s water and the salt in the air. The feel of sand between my toes. It is going to be a surreal experience.

  The first time going into a store to shop for clothing. Seeing and feeling all the different materials, colors, and designs. Choosing and trying on to find a style that is comfortable for me to wear. Walking out with my bags in my hands, the feeling of excitement and joy.

  Going to the grocery store, walking up and down the aisles and looking at all the different products, labels, and choices I have to make. Walking side by side with other customers and with a fleeting thought, “No one knows where I have been. How long I have been locked up. Or that I was ever in prison.” To them I am just another person sharing the same experience they are of walking up and down the aisles shopping.

  I arrive at home. I feel the warmth of Rosie the dog and the softness of her fur. Her licks and kiss and the excitement of me being home. I roll around with her on the floor and play for a few minutes. I then walk through the house taking in everything around me. The furniture to the pictures hanging on the walls, the color of the rooms and the style of the furniture. I go to my room and fall on my bed, feeling the softness of a real bed. I go to the bathroom and check out the tub and shower and look at myself in a real mirror for the first time. I acknowledge that I made it, I am free, I thank God.

  I unpack and settle in. I then go to the kitchen and start to help prepare dinner. I am excited to live my life and to see everything I can do and accomplish in my life.

  Epilogue: The Curse of Uncertainty

  After the closing arguments, Raquel Cohen climbed into her car for the 120-mile trip from downtown Los Angeles to San Diego. Rush hour traffic would make that a four-hour drive at least, time enough to stew for a while, then wind down from the tension of wrapping up such a high-stakes case.

  Ryan Cohen had come along to watch his wife’s closing and to provide moral support. He drove as the two attorneys began their standard ritual of critiquing the day in court, with Raquel obsessively fretting over small details she neglected to mention to the judge.

  “I say this in the most positive way possible,” her husband finally said. “You vomited so much information that you just can’t beat yourself up about some random detail. You nailed it.”

  Just then her cellphone rang. Denise, Jo Ann Parks’s girlfriend, was calling from Hawaii and wanted the latest news. “Jo Ann’s pretty upset,” Cohen began, “but she usually is after a court hearing. So nothing to worry about there.”

  She explained what could happen next: Judge Ryan could rule against Parks, which would mean the California Innocence Project would appeal that ruling. Or Parks could get a win from the judge and face a retrial within sixty days if the prosecution decided to refile.

  “But the district attorney will have a lot of problems retrying,” Cohen told Denise. “ A lot of their experts from the original trial are dead or unavailable.”

  The lawyer declined to predict what the judge would do, but told her, “We gave it the best shot ever. I feel very good about it. And I think the DA had a very weak argument.”

  Mildly cheered by this news, Denise hung up after Cohen agreed to send word as soon as the case was decided. “I will be checking my mail daily,” she promised. “Obsessively.”

  If a retrial did take place, Cohen wanted to make new scientific evidence the heart of her case: She wanted to hire an expert to re-create the fire. He said he could do it, reconstructing the converted garage, right down to its furnishings. Then they would burn it using the prosecution’s theory of how the fire occurred and spread: an origin point in the living room and a second fire set in the girls’ bedroom. If, as she expected, the experiment proved that the fire could not have happened the way prosecutors claimed, it would be powerful evidence of innocence. Or, at least, evidence that the prosecutions’ assumptions and expert opinions were wrong.

  “The only problem is,” Cohen said, “it will cost $100,000 to do it.”

  The innocence project has no budget for such a costly experiment. Yet Cohen said they would find a way. “It really could mean the difference between prison and freedom. . . . It would show that this absolute certainty all the prosecution experts have about their opinions in Jo Ann’s case is completely unjustified.”

  * * *

  • • •

  Whatever Judge Ryan rules, the case of the People v. Parks will not end when he renders his decision. Nor will the larger questions of science, law, and bias it raises. One side or the other will appeal. And the battle to find some measure of certainty, some way to pierce the ambiguity about what really happened in Bell, California, on April 9, 1989, will continue.

  The justice system despises ambiguity and demands certainty—especially in a case in which three small children die. When meeting that demand is not possible in a particular case, a pretense of certainty is often accepted instead. That pretense has been laid bare in the 2,250 and growing slam-dunk cases that, years later, have fallen apart, often from bad forensics or cognitive bias. The certainty with which a Han Tak Lee or a Kristine Bunch were locked away makes the eventual exoneration of that prototypical “monster” dad and mom all the more chilling. “Slow and painful has been man’s progress from magic to law” is, indeed, a signature principle for the age. We know we’re supposed to want the progress and the rationality of law, but we all too often settle for the magic.

  The question is where Jo Ann Parks fits into that spectrum. Hers is a case overflowing with ambiguity, with its murky evidence, conflicting testimony, and a defendant whose behavior and credibility will always raise questions. Then add to the mix the combination of art and science, guesswork and assumptions that characterizes many fire investigations, rendering them uniquely vulnerable to the mind-bending effects of cognitive bias. Confusion about this issue of bias is systemic. The prosecutor at the center of the Parks case—a case with the potential to make or change the law should an appellate court grab hold of it—asks with complete sincerity, “Isn’t fire pattern interpretation subjective?” And the expert answers, “No, that’s the problem. It shouldn’t be. And yet it is.”

  A tangle of plugs and extension cords becomes an incendiary device in the eyes of investigators who express unwavering certainty in their views. A closet door, carelessly thrown away by government officials so no one else can examine it, is said definitely to have been shut and barricaded, another subjective opinion rendered without hesitation or doubt. Indecipherable marks on door hinges become clear evidence of murder—a definitive opinion in a capital case from an “expert” whose total experience examining hinges includes only this case. Not only is his error rate in making such an analysis unknown, he also offered no scientific evidence that hinge analysis in any arson case has any scientific validity. Yet these experts profess certainty.

  As the original fire investigator on the Parks case put it, “If I am wrong, then everything I have ever been taught and those people that have been taught before me, would all be wrong.” The stakes simply do not get higher than that. The justice system craves certainty, and it seems someone is always ready to step up and provide it with a bite mark or a fingerprint or a fire pattern or
a door hinge, if not with science and law, then with magic.

  Is that what happened in the Parks case? Perhaps. Perhaps not. But the inability to answer that question with any confidence may be the real problem.

  It wasn’t supposed to be this way. Forensic sciences were developed across the past century and a half to bring certainty to the justice system, so that instead of relying solely on fallible human memory, instead of needing an eyewitness or a felon caught red-handed to solve a crime, justice could be done with microscopes and measurements and hard data. Judges eagerly admitted all sorts of new and untested forensic sciences into their courtrooms, with expert witnesses, the men and women with lab coats, taking on new prominence. The prosecution of Jo Ann Parks is the logical outcome of this trend, certainty built on the evidence of ash and char and the ability of trained experts to read burn patterns like an ordinary person reads words on a page. It has taken decades for the justice system to acknowledge the existence of the flaws in many forensic practices—the bite-mark comparisons, hair and fiber matching, and burn pattern analyses that seemed so convincing and certain, yet lacked scientific rigor, have led to wrongful convictions.

  The justice system is still grappling—rather poorly—with how to respond to this new reality. There is no systemic review of potential forensic errors under way or even contemplated—just the case-by-case battles that occur when the California Innocence Project or some like-minded individual or group plucks a case from obscurity and champions an individual convict’s cause.

  Then there is what Ed Nordskog calls the holy war: pitting traditional police detective work against the scientific method. This argument, in turn, is really about the larger war within all forensic disciplines over cognitive bias.

  Nordskog finds the whole bias discussion insulting, little more than a gimmick deployed by those in the exoneration “business.” What they see as bias he sees as a good detective following leads, using his or her instincts and knowledge of human behavior to inform an investigation. Detectives, this view holds, have to move beyond the bounds of a scientific inquiry in order to find the larger truth—the messy truth of people in extreme circumstances. It is possible to have that information, Nordskog believes, and still conduct a fair and thorough crime scene investigation. In fact, he sees it as an essential combination. Science has its place, Nordskog says, but it’s the detective who makes the case.