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The Anatomy of an Arson Case

by Guy E. Burnette, Jr., Esquire


Introduction: Statistical Picture of Arson Prosecutions

Arson cases are the least often, least effectively prosecuted criminal offenses in America. At the same time, arson cases are the single largest dollar loss crime in America, exceeding the total of all burglaries, thefts and armed robberies combined. The clearance rate nationally in arson cases is under ten percent. The conviction rate nationally, as a percentage of the incidence of arson, is under one percent. An arsonist has a ninety-nine percent statistical probability of escaping conviction for his crime. People all over the country line up to buy lottery tickets every week with perhaps one chance in twenty million of winning, while an arsonist has a ninety-nine percent probability of "winning" as he strikes the match. Clearly, the criminal justice system has failed in its handling of arson cases.

Why is the Picture of Arson Prosecution so Dismal?

Why is the picture of arson prosecution so dismal? There are many reasons. Arson is typically committed with a carefully calculated plan to minimize the chance of detection. Inevitably, the arsonist has established an alibi. Invariably, there are no eyewitnesses to the commission of the crime. Predictably, much of the physical evidence is destroyed in the fire. Regrettably, the case is investigated by over-worked and under-staffed law enforcement agencies unable to dedicate the investigative resources necessary to uncover the crime. Ultimately, arson cases are prosecuted by state attorneys unfamiliar with the strategies needed to effectively prosecute the offense and unwilling to take on a case involving "only circumstantial evidence" with no eyewitnesses able to testify that they saw the arsonist set the fire. There are too many excuses for the inability of the criminal justice system to effectively handle arson cases. It is time to change this picture and bring a new approach to the investigation and prosecution of arson cases.

The Anatomy of the Crime of Arson

It must begin with an understanding of the anatomy of arson. Arson is by its very nature a clandestine offense, often committed under cover of darkness and almost always away from any eyewitnesses in order to minimize the chance of detection. The evidence is almost entirely circumstantial by definition. The evidence of the crime itself must be recreated from the ashes of the fire. The connecting evidence implicating the defendant must be derived from a chain of circumstantial evidence in nearly every case of arson. This must be recognized and accepted when taking on a case of arson. The successful investigation and prosecution of an arson case requires a commitment of investigative resources to put together a circumstantial case and a commitment on the part of the prosecutor to take a circumstantial case to trial. Only in this context can an arson case be successfully investigated and prosecuted.

Making Arson Cases a Priority in the Criminal Justice System

Arson cases must become a priority in the criminal justice system. While potential arson prosecutions are typically rejected because of "inadequate evidence" or the absence of any direct evidence, this is too often an easy way out. When the ted bundy murder cases seized the attention of the nation, a coordinated investigative effort led to the successful prosecution and conviction of ted bundy. The case was entirely circumstantial in nature. There were no eyewitnesses to the offense. Still, a successful prosecution was obtained through the results of a coordinated investigative and prosecutorial commitment to proving the case. There are countless other examples of the ability of the criminal justice system to prove a case where the public outcry mandates a response to solve a crime despite the availability of only circumstantial evidence. There is almost no arson case anywhere which could not be proved through the efforts of an investigative response such as found in most murder cases. In the final analysis, it is not a question of whether it can be done, but simply a question of whether it will be done.

Use of Circumstantial Evidence: A Sample Case

Ironically, the very circumstantial evidence which is so often viewed as the "weakness" in the case is actually the most convincing evidence proving the guilt of the defendant. Much of the circumstantial evidence in an arson case is objective scientific evidence. The principles of fire science, chemistry and physics are the key to solving a case of arson. It is scientific evidence which establishes a fire to be incendiary in origin. That same scientific evidence can provide compelling evidence connecting the defendant to the crime. The method by which a fire is set and the progression of the fire can provide almost irrefutable evidence of guilt. Consider a typical scenario: a defendant's home burns one night while he is enjoying dinner with a local circuit judge. The fire is discovered more than forty-five minutes after the defendant left his home that evening. The defendant claims he left the home safe and secure with no indication of a fire. He reports there had been problems with the electrical wiring in his home and it was serviced by an electrician only days before the fire. The defendant has an unimpeachable alibi for his whereabouts at the time the fire was discovered. He has a ready explanation for a fire accidentally occurring in his home. Even if he agrees the fire was arson, he has a likely suspect in an employee he recently fired or a neighbor who had a grudge against him and who had threatened him. Surely, there is insufficient evidence in this case to charge the defendant - or is there?

Let's take a closer look at the evidence. The fire investigator who examined the fire scene has conclusively established the fire as incendiary. The electrical wiring, the appliances and all other potential accidental causes of a fire have been ruled out. The burn patterns show the fire was set in a back room of the house with the use of an "accelerant" - gasoline. The person who discovered the fire found the house engulfed in flames from one end of the structure to the other. Based upon the construction of the house and the available combustible materials - the "fire load" - the investigator has determined the fire had already been burning for at least thirty minutes to an hour before it was discovered. The house was found completely secure by the responding fire department with all doors and windows intact. There were no indications of forcible entry into the house before the fire department broke down the doors. Already, two key facets of the case have been established: the fire was set by somebody having access to the premises and it was set at almost the same time the defendant left for the evening. The circumstantial case is building.

Further investigation shows the defendant had the only set of keys to the house and they were in his pocket the night of the fire. Close examination of the fire debris showed the defendant's televisions, stereo equipment, jewelry, vcr, silver-ware and personal computer were still in the house at the time of the fire. However, a file cabinet containing the defendant's valuable records and insurance papers had been emptied. A family photo album kept on the coffee table in the living room was missing in the fire debris. Everything else in the house with any extrinsic value was accounted for in the fire debris.

Interviews with neighbors showed the defendant had recently expressed concerns about his financial situation and had mentioned having to sell the house. A local realtor had been contacted by the defendant concerning a sales listing of the house. The realtor had assessed the market value of the house at $65,000 with an anticipated sales price of $60,000 to $65,000. However, the realtor pointed out the need for certain repairs and cosmetic improvements to make the house marketable which would have cost the defendant about $2,000. If he made these improvements, the realtor had estimated the defendant would receive net sales proceeds after realtor's commission and other closing costs of about $57,000 based upon a sales price of $65,000. The realtor anticipated it could take at least six months to a year to close the sale on the property.

Information from the defendant's insurance agent showed the house was insured for $70,000 with additional coverages of $48,000 for personal property and $20,000 in temporary living expenses in the event of a loss such as fire.

In the event of a total fire loss, the defendant would be entitled to insurance proceeds of $70,000 on the house payable within sixty days after the fire. Additionally, the defendant would retain ownership of the lot and improvements where the house was situated with an estimated market value of $15,000.

The circumstantial evidence of motive is becoming clear. The defendant was in financial difficulty and had fallen behind on his obligations, including the $45,000 mortgage on his property. He had already received several notices from the bank threatening foreclosure. In the event of a foreclosure, the defendant would have lost all his equity in the home and his credit would be ruined. Even if he tried to sell the property, in the time it would take to close a sale he ran the risk of losing the property to the bank in foreclosure if it did not sell quickly. Even if the property did sell at the full asking price, he would only net about $57,000 and after paying off the mortgage would realize roughly $12,000 in proceeds from the sale. However, in the event of a fire the defendant stood to gain much more. He would realize $70,000 in insurance proceeds for the damage to the house, leaving him $25,000 equity after the mortgage was paid off. The insurance company would be required to immediately pay off the mortgage note after a fire, thereby avoiding the potential of a foreclosure action. The defendant would then own the lot and improvements free and clear with a market value of at least $15,000 which he could later sell. Thus, he stood to ultimately realize at least $85,000 from a fire. He would have an insurance claim payable within sixty days at no expense or cost to him. From his "tragedy", he would walk away with at least $40,000 in cash enabling him to solve all his financial problems, avoid the loss of his property through foreclosure and the resulting damage to his credit standing. On top of all this, the defendant had "replacement cost coverage" for his personal property. The policy of insurance would pay him the full cost for all of his furnishings, clothing and personal effects to be replaced with brand new items. While he waited for his settlement, the insurance company would pay the costs of renting temporary housing and would immediately advance the defendant $5,000 to help him through his time of trouble.

Now, let us revisit the question of whether this is a prosecutable case. The defendant claims to have an absolute alibi. He has at least two ready explanations for a fire at his house, whether accidental or not. The evidence is "only circumstantial". Yet, this is clearly a winnable case for the investigator and prosecutor willing to take on the challenge.

This is how a case of arson-for-profit can be proved. In other types of arson cases the same result can be obtained. In a case of arson set to cover a crime, the evidence of the underlying crime is almost always discoverable despite the destruction of the fire. Indications of forcible entry into the premises, the theft of property or the murder of a victim can be established from the evidence left at the fire scene. The fire investigator can establish this evidence in coordination with other experts, such as the medical examiner or toxicologist. The method by which the fire is set is often the best clue to the motive for setting the fire. A qualified fire investigator can show a jury the fire was an after-thought to the crime, set with available combustibles or flammables found at the scene. In a case of arson-for-profit, the investigator can show a jury the fire was carefully planned and set in such a way to ensure the maximum possible destruction of the property. In a revenge/spite fire, the evidence will show the fire was set quickly in order to avoid detection. In a business competition arson, the evidence will show the fire was set to put the business out of operation or destroy some critical component of the business. In a vandalism or juvenile fire case, the method and time of the fire will provide critical evidence. In virtually every type of arson case, there will be some evidence uniquely characteristic of the type arson causing the fire which will refute any hypothesis of innocence claimed by the defendant. A comprehensive latent investigation will inevitably turn up other evidence connecting the defendant to the crime. Like the pieces of a jigsaw puzzle, a well-presented arson prosecution puts together all of the parts until the picture is clear.

Conclusion: Arson Cases as a Test of Trial Skills

Arson cases are interesting, informative, intriguing and entertaining. A well-presented arson trial should be all that and more. For the prosecutor, an arson case is the ultimate test of trial skills and the true measure of legal abilities. The challenge is great, but the rewards are even greater. Every prosecutor wants to win at trial. Winning an armed robbery case with two eyewitnesses and a confession may be satisfying to the prosecutor, yet it is hardly a noteworthy accomplishment. Even a successful murder prosecution does little more than serve the cause of justice when it only involves the presentation of nearly conclusive evidence destined to establish the guilt of the defendant. A prosecutor who has orchestrated a successful prosecution for robbery or murder based upon circumstantial evidence knows the sense of satisfaction and personal accomplishment this can bring. In almost every arson case, the prosecutor faces this challenge to his or her abilities and realizes the personal reward a successful prosecution can bring. For the prosecutor willing to test his or her trial skills, even at the risk of the prosecutor's won/loss record, arson cases represent the opportunity to test those skills in a way no other kind of case can offer.

The willingness to face the challenge of prosecuting an arson case and the willingness to properly prepare a case for prosecution are the keys to winning at trial. This can only come from within. With a personal and professional motivation to take on the challenge of an arson case, it can be won.

Reprinted with permission from the author.

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