 The Anatomy of an Arson Case
by Guy E. Burnette, Jr., Esquire
Contents
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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