Ed. Note: Chris Halkides has been kind enough to try to make us lawyers smarter by dumbing down science enough that we have a small chance of understanding how it’s being used to wrongfully convict and, in some cases, execute defendants. Chris graduated from the University of Wisconsin-Madison with a Ph.D. in biochemistry, and teaches biochemistry, organic chemistry, and forensic chemistry at the University of North Carolina, Wilmington.
In July, 2020 a fire reduced the USS Bonhomme Richard to scrap, costing the Navy over a billion dollars. The navy’s investigation showed that there were failures at many levels of command. Yet, against the advice of one of its own judges, the Navy is trying Seaman Ryan Mays.
If the fire were arson, there were reasons for Mays to be investigated. Mays had stolen a pair of headphones in order to get out of the Navy after failing SEAL training. Mays claims that he still had hopes of trying out a second time (up to three trials are allowed). An eyewitness put him close to the scene, but his testimony changed significantly over time and aspects of it were contradicted by other witnesses. A different person may have been the true culprit, but the investigation into him was cursory.
The prosecution lacks physical evidence of arson, and in a hearing the defense raised two possible causes: lithium batteries that had leaked and arcing from an engine wire on a forklift. Lt. Cmdr. Felix Perez claimed that three fire stations close to the fire must have been tampered with. Yet, there were doubts.
Early on, investigators realized Perez had not done his job well, according to a person close to the investigation who spoke to ProPublica on the condition their name wouldn’t be used so they could speak freely about sensitive matters. The fire stations were inoperable from broad neglect — and Perez and other leaders had failed to recognize the disintegration of the ship’s condition.
Therefore, a reasonable alternative is that fire was accidental. The ship’s personnel consistently performed poorly in drills, and the Navy’s report suggested that the ship had become a fire hazard. Lithium batteries had been stored next to highly combustible material, a violation of protocol. On the day of the fire, just 29 of the ship’s 216 fire stations and 15 of 807 portable fire extinguishers were in standard working order. ProPublica reported:
A more than 400-page report concluded that leaders, from those on board the Bonhomme Richard all the way to a three-star admiral, had failed to ensure the ship’s safety and allowed it to become a fire hazard. Fire response was also grossly mismanaged by leaders who had little understanding of how it should have worked, the Navy’s investigation found. Top Navy leaders called the dayslong blaze preventable and unacceptable.
ATF lead investigator Matthew Beals interrogated Seaman Mays for many hours, using at least one lie in an attempt to get him to confess.
The lead ATF agent, Matthew Beals, and his team of investigators had found no physical evidence anyone purposefully set the fire. Beals later testified that he’d ruled out accidental causes, such as electrical and mechanical, as well as natural ones. With those causes eliminated, along with his assessment of how the fire grew and witnesses’ statements, he concluded it must have been arson.
Using the process of elimination to conclude arson (negative corpus methodology) used to be accepted practice, yet it is highly problematic for at least two reasons. One, the damage that occurs during a fire or as part of firefighting limits the amount of evidence that can be recovered. The fire aboard the USS Bonhomme Richard reached at least 1200 °F and was not completely extinguished for several days. Two, its logic is flawed. Suppose an investigator looked for evidence of arson and could not find it. By the logic of NCM, he or she should conclude that the cause must have been accidental or natural. “If you can’t find the ignition source, you make it undetermined,” Fire Investigator Robert] Duval said. The National Fire Protection Association’s document 921 rejected NCM in 2011.
Another troubling aspect of the investigation is that Matthew Beale had both interrogated Seaman Mays and investigated the fire. Although combining the scientific and law enforcement roles in some way is commonly done, it is extremely questionable in that the forensic scientist would then have extensive task-irrelevant information. The National Commission on forensic Science wrote:
When evaluating whether a latent print at a crime scene came from a particular suspect, for example, it would be inappropriate for the fingerprint examiner to be influenced by whether the suspect made incriminating statements or had a convincing alibi, or whether other forensic evidence implicated the suspect…a fingerprint examiner may need information about the surfaces from which the prints were lifted in order to assess whether discrepancies between prints could have been caused by curvature or distortion of one of the surfaces.
Parisa Dehghani-Tafti and Paul Bieber wrote,
The NAS Report strongly recommends that ‘forensic investigations should be independent of law enforcement efforts either to prosecute criminal suspects or even to determine whether a criminal act has indeed been committed’…In place of the independence of forensic examination recommended in the NAS Report, many public agencies have adopted the Arson Task Force model where fire department investigators are teamed up with investigators from the police and district attorney’s office, sharing responsibilities for the criminal investigation, where the lines between fire scene examiner and criminal investigator are not just blurred but are obliterated.
The cause of the fire on the USS Bonhomme Richard should be listed as undetermined. The Navy’s own investigation showed that there were failures at many levels of command and that neither the existence of fire hazards nor the unpreparedness of the crew against fires were taken seriously. Future naval fire investigations should use sound logic and should clearly separate scientific and criminal roles. Long, bullying interrogations of young sailors are conducive to false confessions, an obvious lesson from the Norfolk Four case.
For Further Reading
Parisa Dehghani-Tafti & Paul Bieber, “Folklore and Forensics: The Challenges of Arson Investigation and Innocence Claims,” 119 W. Va. L. Rev. (2016).
John Lentini, “Contextual Bias in Fire Investigations: Scientific vs. Investigative Data”
Dennis W. Smith, “The Death of Negative Corpus” Proceedings of the 5th International Symposium on Fire Investigation (2012).