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Arson Expert Challenged by Ohio Prosecutor

Arson Expert Challenged by Ohio Prosecutor

A defendant who is charged with aggravated arson in Ohio wants to call a fire expert to support his theory of how the fire started. The prosecution filed a Daubert motion that challenged the expert’s qualifications to testify and his methodology. The trial court has not yet indicated how it will rule.

Facts of the Case

A fire in Middleport, Ohio destroyed two businesses in May 2016. The fire occurred at night, after the stores were closed. Apartments on the second floor of the two buildings were unoccupied and no lives were lost.

The state fire marshal determined that the fire was suspicious. Reports at the time of the fire suggested that someone started it by lighting a gas can and flinging it into one of the buildings or into an alley behind the buildings.

The Major Crimes Task Force received a tip that the fire was started intentionally. Police arrested Keith Day after questioning witnesses at the scene. A grand jury later returned an indictment for two counts of arson.

Witnesses apparently told the police that Day made threatening statements after being kicked out of a tavern and that the tavern may have been the actual target of the fire.

Qualifications of Defense Expert

Ohio is essentially a Daubert state, although the state’s judicial decisions suggest that Ohio judges may have more flexibility than federal judges in determining the reliability of expert testimony. Judges are nevertheless required to determine whether an expert’s opinion meets a threshold standard of reliability. If it does not, the judge must exclude the testimony.

The prosecution challenged the qualifications of the defense expert. Ohio follows the general rule that an expert witness is qualified to testify when the expert has scientific, technical, or other specialized nature that is beyond the knowledge or experience of lay persons.

The prosecution apparently agrees that the defense expert, Dr. David Manuta, was a qualified expert in the past. Dr. Manuta has a Ph.D. in chemistry and has given expert testimony in trials or depositions in dozens of civil and criminal cases.

The prosecution argues, however, that Dr. Manuta is no longer “up to speed” and is therefore not qualified to testify as an expert. That argument is based in part on the fact that Dr. Manuta has not published any recent articles in his field of expertise. Publication, however, has never been seen as a requirement that determines whether an expert is qualified to testify.

The prosecution also made the following argument based on Dr. Manuta’s testimony at a Daubert hearing. According to the prosecutor:

Dr. Manuta was not able to recall fundamental rules from the National Fire Protection Association (NFPA). NFPA is the “standard” for such science according to Dr. Manuta. Yet, on cross examination he said there was not a level of certainty or even varying levels of certainty as outlined in the NFPA Manual. Level(s) of certainty are crucial to a scientific expert testifying. It wasn’t until the state’s attorney handed him a copy to review that he realized the different levels.

Failing to recall a specific detail in a manual may affect the credibility of an expert’s testimony at trial, but no witness has perfect recall. The prosecutor can use Dr. Manuta’s failure of recollection to challenge his credibility at trial, but Ohio law makes clear that the jury, not the judge, should decide whether an expert is credible.

It seems unlikely that an Ohio judge would disallow an expert’s testimony because his recollection of details was faulty during a Daubert hearing. This case nevertheless illustrates the importance of preparation. If experts rely on professional or scientific standards, they should review those standards carefully before testifying.


The prosecution argued that Dr. Manuta is biased because he “testified that he was hired by Defense Counsel to help Defendant, paid to help Defendant, and started the scientific method with the idea to help Defendant.” Of course, all expert witnesses are hired and paid in the hope that they will provide helpful testimony to the party that hired them.

An expert’s search for the truth is not inconsistent with an attempt to determine whether the truth will assist the party who hired the expert. In the absence of evidence that Dr. Manuta slanted his conclusions to favor the defense, the question of bias is one that the jury can consider as it evaluates Dr. Manuta’s testimony. The prosecutor’s assertions of bias should not prevent the expert from testifying.


The prosecution’s final argument is that Dr. Manuta did not conduct any experiments to verify his hypothesis as to how the fire started. Yet expert opinions can be based on a review of existing data, and if that data is sufficient to support the expert’s theory, there may be no need to conduct independent experiments.

Press accounts are a bit murky as to the data that Dr. Manuta relied upon and the conclusions he drew from that data. Still, the judge will likely reject this challenge unless there is a clear showing that Dr. Manuta’s theory as to the fire’s origin could only be deemed reliable if it is supported by experimental results.

House damaged by fire

Expert Challenges Evidence Supporting Arson Conviction

William Amor was charged with causing a death by arson in a 1995 fire. A jury found him guilty in 1997. Amor has been in prison for the last 19 years. He has always contended that he did not purposely set the fire that killed his mother-in-law.

Amor is seeking a new trial. In an attempt to persuade a judge that he was convicted on the basis of unreliable evidence, Amor has presented expert testimony that the fire was started accidentally. The prosecution has countered with expert testimony that challenges the conclusions reached by Amor’s arson expert.

Amor’s Trial

Amor’s wife, Tina, told arson investigators in 1995 that she dropped her cigarette while she was smoking in a recliner. She could not find the cigarette but assumed that it was no longer burning. Tina later went to a movie with Amor, while her mother remained in the house.

The fire occurred in Naperville, Illinois. The Naperville police arrested Amor and held him in jail for two weeks. After an interrogation that lasted 15 hours, an exhausted Amor confessed to setting the fire so that Tina could collect insurance money. He later recanted that confession, but it was used against him at his trial.

At the trial, a fire investigator for the Naperville Fire Department testified that the fire started between the recliner and a nearby glass door. The investigator based that opinion on “fire pattern analysis” and the presence of a single V-pattern near the swivel chair.

The investigator testified that the fire was deliberately set. However, it appears that he arrived at that conclusion because he wanted to corroborate Amor’s confession. Before Amor gave his incriminating statement to the police, fire investigators said that the fire’s origin was undetermined.

Subsequent Proceedings

The Innocence Project of Illinois began to investigate Amor’s case in 2012. Their investigation was initially stymied by the state’s attorney’s office, which resisted Freedom of Information Act (FOIA) requests by claiming to be an agency in the judicial branch of government, to which FOIA does not apply. The investigation began to move forward after a judge made the obvious ruling that prosecutors belong to the executive branch of government, not the judiciary.

The DuPage County state’s attorney said “his office doesn’t believe in open access to case files.” That makes sense when a case is still pending, because access to evidence is governed by rules of discovery. After a case is closed, however, public access to information is an important safeguard to assure that prosecutors are not trying to cover up their misconduct. The prosecutor’s position — that Amor may have lied about how he started the fire but didn’t lie about starting the fire — makes so little sense that the need for open access to the prosecution’s case file seems obvious.

Amor’s Expert Witness

Doug Carpenter, an expert with Combustion Science and Engineering Inc. of Maryland, testified in support of Amor’s motion for a new trial. Amor’s confession stated that he set the fire by dropping a lit cigarette onto newspapers soaked with vodka. Carpenter told the court that it is impossible to start a fire in the way that Amor described.

Carpenter also testified that the fire investigation techniques used in 1995 have since been discredited. He concluded that the original investigators “relied upon misapplication of the scientific method, as well as scientifically unreliable myths and misconceptions that had permeated the fire investigation community for years prior to the time of their investigation and testimony.”

Carpenter suggested that advances in fire science, when applied to the evidence in Amor’s case, point to Tina’s smoldering cigarette in the recliner as the most likely cause of the fire.

Prosecution’s Expert Witness

John Golder, a special agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives, testified for the prosecution. He said that the damage was not consistent with a fire started by a smoldering cigarette. He concluded that a flame from some other source must have started the fire.

Golder agreed, however, that it was not possible to use vodka to set a fire with a burning cigarette. He also conceded that a laboratory analysis failed to find any ignitable liquid that could have been used to start the fire.

Golder’s report suggested that the fire was probably set deliberately but probably not by Amor. Golder viewed Tina as a more likely suspect, although he was open to the possibility that Armor was an accomplice.

The Science of Arson Investigation

According to one expert observer, “fire pattern analysis” has been discredited when the fire burns past a flashover point. A flashover occurs when most of the combustible material in a room starts on fire at roughly the same time. According to the expert, some studies show that “the accuracy rate of determining a fire’s area of origin in a post-flashover fire was between 6 and 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}.”

Carpenter criticizes outmoded arson investigation techniques as “junk science.” He says that fire investigators resisted using scientifically acceptable techniques until the early 2000s.

Wrongful convictions have resulted from adherence to the “junk science” of outmoded fire investigation techniques. Frontline provided extensive coverage of doubts surrounding the arson murder conviction of Cameron Todd Willingham. Frontline calls Willingham “the most prominent case of a person who was convicted and executed for a crime he may not have committed.” Gerald Hurst, a leading arson investigator, concluded that the house fire Willingham was accused of starting was not arson. Hurst also said in a 2010 interview that “95 percent of fire investigators get it wrong.”

Frontline also called attention to several cases of arson-related murder convictions that were called into question by advances in fire science. Two people in Texas, Ernest Ray Willis and Sonia Cacy, were exonerated after new investigations established that the fires they were accused of setting started accidentally. Willis had been on death row for 17 years at the time of his exoneration while Cacy had been serving a sentence of 99 years.

The prevalence of wrongful (or questionable) convictions should alert criminal defense attorneys to the need to hire their own expert witnesses in an arson prosecution. Prosecutors who are concerned about finding the truth should also be suspicious of government experts who do not follow currently accepted standards for fire investigation.

Fire Investigation Expert Witness Report Leads to New Trial for Chicago Man

A Chicago man convicted of setting a fire which killed two people in 1993 will receive a long awaited retrial due to evidence from fire science expert witnesses.  Prosecutors in the case have relented to repeated requests from the defense and agreed to a retrial after reviewing an expert report detailing modern advances in fire science technology which call the initial conviction into question.

Chicago Man Challenges Arson Conviction

Adam Gray has been serving a life sentence without parole since his 1996 conviction for setting a fire in 1993 which killed two people in an apartment building.  Gray, who was 14 at the time of the fire, was angry with his girlfriend and allegedly set the fire in a building where she and her parents resided.  Although the girlfriend and her family were able to escape, an elderly brother and sister who lived above the family died as a result of the fire.  In addition to a confession, which Gray now claims was coerced, prosecutors relied on the testimony from fire science expert witnesses to earn a conviction and life sentence.

During Gray’s initial trial, fire investigators testified that they found charring and burn patterns consistent with a hot fire which was set intentionally and spread with an accelerant.  Police investigators found a milk jug behind the burned building which contained what appeared to be the accelerant used to fan the fire, and a gas station clerk connected Gray to a purchase of fuel shortly before the fire was set.  In the years since the conviction, attorneys working for Gray have identified advances in fire science investigation techniques which raise questions about the validity of the conclusions by police and the testimony by fire expert witnesses.

Modern Fire Science Expert Witnesses Challenge Arson Conviction

When Gray recanted his confession after his conviction and life sentence, his new legal team set to work challenging the physical evidence which prosecutors used to argue the fire had been set intentionally.  According to his defense team, advances in fire investigation techniques suggest that the fire was not an arson at all, and what the police believed to be an accelerant was not present at the scene.  Fire expert witnesses John Lentini and Gerald Hurst produced fire investigation expert witness reports which challenged the initial findings of the investigation and prosecution of Gray.

According to Hurst, fire investigators who examined the remains in 1993 were too quick to conclude that the charring and burn patterns were evidence of an arson.  In an expert witness report to prosecutors, Hurst claimed that the fire investigators at the time did not have cause to rule out a conclusion that the fire started and spread accidentally.  Lentini contributed his expert evaluation of the fire by saying that the substance found in the milk jug – which police concluded was the accelerant Gray used to spread the fire – was not actually present at the scene.  Lentini told prosecutors that the substance in the milk jug, and the substance found on the wood of the building, were not only different, but neither were effective accelerants which could have been used to spread the fire.

Gray’s defense team presented the new fire expert witness evidence to prosecutors over a year ago, however, they were met with resistance.  After initial refusals to retry the case based on the new fire science evidence, Chicago prosecutors have finally relented.

Chicago Man to Receive New Arson Trial

After a year of refusals, prosecutors in Chicago have determined that the evidence presented by modern fire expert witnesses is sufficient to grant Adam Gray a new trial for arson and murder.  While the joint motion by prosecutors and defense attorneys for a new trial still needs approval from a local judge, the agreement by the district attorney to retry the case likely means Gray will have another day in court in the coming months.

Although the change of heart likely has a lot to do with the upcoming arrival of a newly elected DA who unseated the incumbent in a recent election, the prosecution’s willingness to retry a case with new expert witness testimony is an encouraging sign for other Chicago area defendants seeking to have convictions overturned based on advances in modern science.