by Edward Humes
Police reports and transcripts of interviews with Kathy Dodge are the primary sources of information about her interactions with Jo Ann Parks and her family, along with the case notes and opinion filed in the habeas proceedings by Ed Nordskog, and “Long Trail Led to Arrest of Mother in Children’s Deaths,” by David Ferrell, Los Angeles Times, December 1, 1991.
Chapter 12: Everything Which Is Not Law
Author’s interviews with Raquel Cohen, retired Deputy District Attorney Dinko Bozanich, Mario Trujillo, and Justin Brooks.
Scalia’s errant error rate calculation came in Kansas v. Marsh, 548 US 163, 182 (concurring opinion of Justice Scalia) (2006). The more scientific calculation can be found in “Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death,” by Samuel R. Gross, Barbara O’Brien, Chen Hu, and Edward H. Kennedy, Proceedings of the National Academy of Sciences (PNAS), May 20, 2014.
There were 2,253 known exonerations in the United States between 1989 and July 2018 for major crimes. This number does not include cases in which new trials were granted to inmates due to wrongful convictions who then negotiated a plea to lesser charges in exchange for immediate release, rather than face years of appeals and a new trial. Exoneration data and details are from the National Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/about.aspx and from “First DNA Exoneration: Gary Dotson,” article published online by the Bluhm Legal Clinic, Center for Wrongful Convictions, Pritzker School of Law, Northwestern University http://www.law.northwestern.edu/legalclinic/wrongfulconvictions/exonerations/il/gary-dotson.html.
Fire scene investigation information is from the author’s interview with Ron Ablott and the testimony of Ablott and William Franklin in People v. Parks. The original investigators in the case identified one major area of origin for the fire as below the living room windows because of the extremely large V-pattern in that location. However, testimony from defense experts decades later in the habeas hearing suggested that large V-pattern was caused by ventilation—the massive influx of fresh air that occurred when the living room windows shattered from heat and flames. The size of the V-pattern therefore could not be used as evidence of area of origin, especially because there was no evidence of an ignition source in that area once the wires were shown not to have started the blaze.
Negative corpus was commonly used in arson investigation for many decades and was considered proper methodology at the time of the Parks fire. However, beginning in 2011, the most authoritative guidelines for fire investigation, NFPA 921 (published by the National Fire Protection Association) took a strong stance against the use of negative corpus as “unscientific.”
The following language is taken from the 2014 edition of NFPA 921 section 19.6.5:
The process of determining the ignition source for a fire, by eliminating all ignition sources found, known, or believed to have been present in the area of origin, and then claiming such methodology is proof of an ignition source for which there is no supporting evidence of its existence, is referred to by some investigators as negative corpus . . . [Negative corpus] is not consistent with the scientific method, is inappropriate, and should not be used because it generates untestable hypotheses, and may result in incorrect determinations of the ignition source and first fuel ignited.
On the position of the closet door, Bozanich told jurors they could not believe Wegner’s or McGee’s testimonies. In habeas pleadings, Deputy DA Erika Jerez reaffirmed this point in her formal response:
The prosecutor conceded during closing argument that the only two prosecution witnesses who testified to seeing the door closed were wrong, because although it had been closed during the fire, it had been opened by the first responders before Ronnie was discovered.
As stated by DDA Bozanich, the People did not “rely on the testimony of either Wegner or McGee that the closet door was closed to establish that the closet door was closed at the time of the fire. . . . [One] could hypothesize with both of them that that’s how it was when they first saw it. But a long time later when they were finally asked some questions about it,” their memories of when they saw it closed versus open merged together. Rather, the People relied on the condition of the door hinges and the condition of the boy’s body to show that the closet door was closed during the fire.
Chapter 13: “If I Am Wrong, Then Everything I Have Ever Been Taught . . . Would All Be Wrong”
Much of this chapter is based on Parks trial transcripts. Additional information about Robert Lowe was provided by his daughter Mary Ross.
Chapter 14: Sherlock Was Wrong
For perspectives on flaws in forensic science, including fingerprinting, the most comprehensive sources are “Strengthening Forensic Science in the United States: A Path Forward,” National Research Council, August 2009, and “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” President’s Council of Advisors on Science and Technology (PCAST), September 2016.
The PCAST report had this to say about the current state and needed reforms for fingerprint matching:
The method was long hailed as infallible, despite the lack of appropriate empirical studies to assess its error rate. In response to criticism on this point in the 2009 National Research Council report, those working in the field of latent fingerprint analysis recognized the need to perform empirical studies to assess foundational validity and measure reliability and have made progress in doing so. Much credit goes to the FBI Laboratory, which has led the way in performing black-box studies to assess validity and estimate reliability, as well as so-called “white-box” studies to understand the factors that affect examiners’ decisions. PCAST applauds the FBI Laboratory’s efforts. There are also nascent efforts to begin to move the field from a purely subjective method toward an objective method—although there is still a considerable way to go to achieve this important goal.
PCAST finds that latent fingerprint analysis is a foundationally valid subjective methodology—albeit with a false positive rate that is substantial and is likely to be higher than expected by many jurors based on longstanding claims about the infallibility of fingerprint analysis. The false-positive rate could be as high as 1 error in 306 cases based on the FBI study and 1 error in 18 cases based on a study by another crime laboratory. In reporting results of latent-fingerprint examination, it is important to state the false-positive rates based on properly designed validation studies.
With respect to validity as applied, there are, however, a number of open issues, notably:
Confirmation bias. Work by FBI scientists has shown that examiners often alter the features that they initially mark in a latent print based on comparison with an apparently matching exemplar. Such circular reasoning introduces a serious risk of confirmation bias. Examiners should be required to complete and document their analysis of a latent fingerprint before looking at any known fingerprint and should separately document any additional data used during their comparison and evaluation.
Contextual bias. Work by academic scholars has shown that examiners’ judgments can be influenced by irrelevant information about the facts of a case. Efforts should be made to ensure that examiners are not exposed to potentially biasing information.
Proficiency testing. Proficiency testing is essential for assessing an examiner’s capability and performance in making accurate judgments. As discussed elsewhere in this report, proficiency testing needs to be improved by making it more rigorous, by incorporating it systematically within the flow of casework, and by disclosing tests for evaluation by the scientific community.
Scientific validity as applied, then, requires that an expert: (1) has undergone relevant proficiency testing to test his or her accuracy and reports the results of the proficiency testing; (2) discloses whether he or she documented the features in the latent print in writing before comparing it to the known print; (3) provides a written analysis explaining the sel
ection and comparison of the features; (4) discloses whether, when performing the examination, he or she was aware of any other facts of the case that might influence the conclusion; and (5) verifies that the latent print in the case at hand is similar in quality to the range of latent prints considered in the foundational studies.
Concerning the path forward, continuing efforts are needed to improve the state of latent-print analysis—and these efforts will pay clear dividends for the criminal justice system. One direction is to continue to improve latent print analysis as a subjective method. There is a need for additional empirical studies to estimate error rates for latent prints of varying quality and completeness, using well-defined measures.
A second—and more important—direction is to convert latent-print analysis from a subjective method to an objective method. The past decade has seen extraordinary advances in automated image analysis based on machine learning and other approaches—leading to dramatic improvements in such tasks as face recognition and the interpretation of medical images. This progress holds promise of making fully automated latent fingerprint analysis possible in the near future. There have already been initial steps in this direction, both in academia and industry.
The PCAST report was scathing on the lack of rigor for bite-mark evidence:
Available scientific evidence strongly suggests that examiners not only cannot identify the source of a bitemark with reasonable accuracy, they cannot even consistently agree on whether an injury is a human bitemark. For these reasons, PCAST finds that bitemark analysis is far from meeting the scientific standards for foundational validity.
We note that some practitioners have expressed concern that the exclusion of bitemarks in court could hamper efforts to convict defendants in some cases. If so, the correct solution, from a scientific perspective, would not be to admit expert testimony based on invalid and unreliable methods but rather to attempt to develop scientifically valid methods. But, PCAST considers the prospects of developing bitemark analysis into a scientifically valid method to be low. We advise against devoting significant resources to such efforts.
The description of the ATF burn-cell training exercises and the difficulty fire investigators had in identifying the correct area of origin after flashover came from the author’s interviews with John Lentini and Steve Carman, and from “Improving the Understanding of Post-Flashover Fire Behavior,” by Steve Carman, Proceedings of the 3rd International Symposium on Fire Investigation Science and Technology, 2008.
Information on the Kristine Bunch case and stereotypes in the prosecution of female defendants was based on court records in the Bunch case and “Death, But Is It Murder? The Role of Stereotypes and Cultural Perceptions in the Wrongful Convictions of Women,” by Andrea L. Lewis and Sara L. Sommervold, Albany Law Review, vol. 78.3, Spring 2015.
Chapter 16: The Bias Man
Sources in this chapter include interviews and testimony of Paul Bieber and Ed Nordskog.
Information on the Souliotes case is based on information from “Anatomy of a Wrongful Arson Conviction: Sentinel Event Analysis in Fire Investigation,” by Paul Bieber, 2014, and habeas ruling in the case of George Souliotes, dated April 26, 2012.
Chapter 18: What Revolution?
Two witnesses testified to finding an extension cord in the living room that had cuts in the insulation in one section and drapery wrapped around another section. This became the basis for prosecution expert witnesses asserting for decades something subtly, but vitally, different: that Jo Ann Parks created an incendiary device consisting of cuts in wiring covered over by drapery material.
However, a careful reading of the testimony shows that one of the two witnesses, LA County fire investigator William Franklin, despite initially describing what sounded like a crude incendiary device, did not actually discover (or photograph) cuts in a cord covered over by drapery. Instead, he recalled that someone else, possibly LA Sheriff’s detective Ron Ablott, found it while Franklin was preoccupied with his own tasks working nearby in the living room.
Then Ablott’s testimony about those same events reveals what Franklin missed. Ablott said he did indeed find an extension cord that had some drapery wrapped around a portion of it. But there were no cuts in the cord at that point. Ablott followed the cord along the floor beneath the windows in the living room, and found a section of wiring that was badly burned with the plastic insulation gone or completely consumed by fire, along with a smaller section that was well preserved because it had been underneath a small plastic crate or basket with clothes inside it. Most of the crate had been burned away, leaving just a plastic mesh bottom stuck to the carpeting. When he pulled up the partially melted bottom of the crate, he found a section of the wire that had four small cuts in the insulation—but no drapery.
Over the years, this information from two witnesses has been distorted into cut wires wrapped in drapery to form an incendiary device.
Here is an excerpt of Franklin’s testimony, under cross-examination, starting at transcript page 2829, with sections showing Franklin did not actually see the key moment of “discovery” in boldface:
Q: Where was the cut in the wire?
A: I can’t answer that. I did not pick that piece of wiring to do that. I was doing something else and I forget whether it was Ablott or [his partner] Love started playing with it and came up, untwisted it and said, hey, you know, look.
Q: Untwisted it?
A: Well, unwrapped the burned fabric from around it.
Q: Was the burned fabric actually around it?
A: Well, I saw it was . . . it was . . . it was adhered to it, okay? He had peeled it away from the wiring.
Q: Let me see if I have it straight. The cut area that you are talking about, this was something that you saw then?
A: I saw it there, yes, sir.
Q: And it was a bare wire?
A: It was a wire—two wires and a cord appearing to be a service cord, a larger type of service cord. Under that area it had most of the insulation still in place. . . . Again, I was not the one who picked it up and manipulated it.
Q: You have, I believe, testified that the cut wire was wrapped in something?
A: Yes, sir.
Q: That you saw with your own eyes?
A: Yes, sir.
Q: Tell us about that.
A: It had a fabric on it appearing to have the same weave and backing as would a set of drapes.
Q: That was actually on the wire?
A: Adhered to it, yes, sir.
Q: Well, how did he take it off, with a knife?
A: I believe he just unwrapped it with his hands.
Q. This was a piece of a kind of drapery material? Was it kind of melted into the wire?
A: It was adhered to it, yes, sir.
Q: What do you mean by “adhered”?
A: It had melted and adhered to the wiring and the wiring insulation.
Q: Some drapery material adhered to the insulation and Detective Ablott, in your presence, got that off the insulation somehow?
A: Either Detective Ablott or Love, and I am not sure which one.
Q: And they peeled it off with their hands?
A: I am sure they did, yes, sir.
Q: And then what happened to the piece of drapery material?
A: I believe the preponderance stayed here and to the wire. They would just kind of very carefully peel it back.
Q: And where they peeled it back you were able to see a cut in the wire?
A: Yes, sir.
Q: That’s the only cut that you observed there?
A: That segment of wire, yes, sir.
Q: How long was it?
A: Very short.
[skipping several questions]
Q: And that cut had been earlier wrapped with some of this material that looked like a drape?
A: Yes, sir.
>
Q: And you saw him remove that in your presence from that wire?
A: Remove it, no, sir.
Q: How did you know it had been wrapped?
A: I saw what appeared to be a wrap. How exactly, how he manipulated it to expose the wiring, I cannot say. . . . I believe the first time I saw the wire the material was adhered to it, and then the wiring now is exposed with the insulation exposed where I can see the knife cuts.
Q: So you can see knife cuts, but at the same time on the opposite side of the wire you can see some of what looked like drapery material or adhering to—is that a fair statement?
A: Yes, sir.
Q: Now the material that he peeled back, was that still adhering or was part of it taken off and discarded or something?
A: Being I wasn’t present or wasn’t observing him when he peeled it, there may have been more that he peeled off and fallen, but I can’t answer. All I saw was the part that was still adhered when I looked at it.
Q: Now that process of doing that, that’s not recorded in your photography, is it?
A: No, sir, it is not.
Next, here is Ron Ablott’s testimony, beginning on page 2938 of the trial transcript, about finding the cuts in the extension cord, and how it did not involve peeling back any drapery material, but peeling the bottom of a plastic crate from the carpet it had melted and stuck to. Key sections about these two separate discoveries are in boldface.
Q: In that area of origin, did you see anything which you felt was suspicious?
A: Yes, I did.
Q: What?
A: While overhauling, which is a term we use which means we are digging out or actually removing the ash from the fire in layers, getting down to the floor in the area so you have an idea what it looks like prior to the fire, I found that there was an electrical cord that extended from the outlet next to the front door on the west wall of the living room. This outlet was on that same wall. It came from the outlet and ran down the north wall right next to it to an area where the V-pattern was and then continued up. In this same wire assembly, there was a multi-plug outlet attached which went off due south someplace into some broken wires.
