DAs Are Urged to Become Involved In Early Stage of Fire Investigations

DAs Are Urged to Become Involved In Early Stage of Fire Investigations

Urban blight is a stark reality in this New York City area swept by arson fires.

New York Fire Dept. photo, F. Murphy

AMERICA’S MALIGNANT CRIME

Arson is rapidly becoming one of the most talked about crimes in America. This is a remarkable change from just a few years ago when incendiarism was perceived merely as a problem for fire departments and insurance companies.

Economically, arson’s cost is staggering. Recently the Senate governmental affairs subcommittee on intergovernmental relations was told that since 1975 property losses caused by arson have doubled and now amount to $2 billion. Other figures are even more dismaying. The Insurance Services Office estimates that the total actual fire loss due to arson in 1976 might have exceeded $4 billion.

According to the American Insurance Association, incendiary fires account for 20 percent of the fire insurance claims and 40 to 50 percent of dollars lost to fire.

Something can be done

Unlike the weather, something can be done about this serious crime problem. In recent years, conferences and seminars throughout the country have called for a coordinated attack on “incendiarism.” There is an increasing realization that government agencies and private industry cannot develop effective policies and programs without a common understanding of each other’s functions. Within the law enforcement community, there is still much to be done. I am very pleased to write this article sharing some thoughts about the prosecutor’s role in arson investigation and the preparation of these cases for trial.

It is axiomatic that the single greatest deterrent to arson for profit is swift prosecution. Yet statistics reveal that arson conviction rates fall far below other comparably serious felonies. Even more disturbing is the fact that in many areas of the country, arson indictments are few and convictions are rare.

It is not uncommon to hear complaints that the DA is not aggressive enough where arson is concerned, and criticism that arson has a low priority with prosecutors is widespread. On the other hand, some prosecutors contend that they are unable to obtain indictments because necessary evidence has not been developed or was overlooked by arson investigators.

Lack of understanding

Much of the criticism from both sides stems from a lack of understanding of the other’s problems and functions, but things are improving. Prosecutors are becoming more active in the arson investigations being conducted within their jurisdictions and those investigating suspicious fires recognize the contributions prosecutors can make in the early stages of an investigation.

Arson investigations are unfamiliar terrain to most prosecutors for whom burglaries, robberies and homicides are second nature. Most prosecutors are unacquainted with those who investigate arson while they may work with police on an almost daily basis. It is very important that prosecutors learn as much as possible about the manner in which arson probes are conducted in their jurisdictions as well as which agency is doing the investigations. Prosecutors should make every effort to establish a policy for handling arsons whereby early consultation with investigators and cooperation between them and other law enforcement agencies is encouraged.

A significant problem, common throughout the country, is establishing which agency has primary responsibility for arson investigation. This is so because of poor cooperation among often competing law enforcement agencies. In some areas, full service agencies in the form of fire marshal bureaus with full police powers are charged with arson “investigation” as well as arson “detection.” In other localities, arson “investigations” fall under the auspices of the state police or perhaps a state fire marshal.

Overlap of roles

Still other areas draw a distinction between “detection” as being a fire service responsibility and “investigation” as a police function. Even where duties are seemingly well-defined, problems arise where traditional police-fire roles overlap. This is especially so with arson-homicide cases, when police departments which do not usually take an active role in arson investigations are quick to assert authority.

Obviously, it is counterproductive for different agencies to conduct independent investigations. Such problems will not correct themselves and can spill over into those areas where fire-police cooperation is routine. When such difficulties exist, an objective third party is often best suited to resolve these jurisdictional disputes. An informed, concerned prosecutor’s office can play such a role.

A recent report of the National Fire Prevention and Control Administration, “Arson: America’s Malignant Crime,” addressed itself to this problem:

“The search for a consensus on responsibility goes deep into the traditional division between fire protection and law enforcement agencies, traditional in the United States, if not in other countries. It is compounded by the fact that the vast majority of fire fighters in the United States are volunteers. (This is particularly true in suburban and rural areas.) Yet there can be no effective program that is purely fire or police-oriented without genuine cooperation by the other service; and back of any effective program must be the courts. Where an effective program is fire-oriented it should be continued. Where an effective program is policeoriented it should be continued. For anyone implementing a new program, the task force approach is highly recommended. But there always must be an agency or an individual with executive powers to stimulate involvement of others. Such individual could be the District Attorney.”

Need for lab facilities

Another area where the prosecutor can make a significant contribution is by lending his voice and prestige toward implementing needed technical improvements. The lack of adequate laboratory facilities geared to the needs of arson investigation is a problem nationwide. The time lapse in awaiting lab results, often only to obtain an inconclusive report, is frustrating and unnecessary. Prosecutors should be at the vanguard of attempts to provide such facilities.

Gutted by fire, a New York City tenement awaits only demolition after work of arsonists.

New York Fire Dept, photo, C. Justice

So, too, whether arson investigation is designated as a fire or police function, it rarely receives proper budgetary priority. Fire department budgets are necessarily geared toward fire suppression while police budgets are understandably confronted with a Hobson’s choice among all violent crimes. The prosecutor can well assess the arson problem he faces and he should work toward giving the highest priority to arson suppression.

Public awareness is yet another area where the prosecutor’s office has a role to play. The prosecutor should speak out personally with reference to the threat arson poses to his community, at the same time fostering civic associations’ participation in efforts to educate the public about the arson menace.

Cooperation needed

Finally, one of the most important areas in which the prosecutor must be active is in encouraging government and private agencies to cooperate in arson investigations. More and more insurance companies are recognizing their responsibility to work in conjunction with law enforcement. If legislation is required to facilitate disclosure of data by insurance companies, the prosecutor should fight for it. Where helpful, he should encourage efforts by private industry such as tip reward programs and public service announcements enlisting the public’s aid.

An individual prosecutor’s approach to handling the arson problem will depend largely on the size of his office and the extent of the arson threat. Perhaps the most shining example is Bronx County, New York, where the district attorney has formed an arson bureau composed of a number of attorneys and investigators as well as an auditor, and where the results have been impressive. In other parts of the country, prosecutors have played major roles in local arson task forces, combining various law enforcement efforts to combat arson.

Smaller cities also have arson problems, as this New Haven, Conn., photo shows.

New Haven Fire Dept. Arson Squad photo

Moreover, while not every prosecutor can spare the personnel to staff an arson bureau or initiate a formal task force approach, it is very important that he set forth policies and operational procedures for the handling of arson cases by his office. Even where a full-time attorney cannot be spared, someone should be assigned as liaison with fire investigators. That assistant prosecutor would then familiarize himself with the rudiments of arson investigation and be available when investigators need guidance or advice. Such an assistant would be on call for search warrants and to take statements and lend any other assistance required. In short, the same attention and special handling that goes into homicide investigations should go into arson efforts.

Early consultation

On the other hand, fire investigators should be encouraged to consult with the prosecutor as promptly as possible. Since most arson investigations are slow, methodical undertakings and rarely result in summary arrest, there are many ways in which the prosecutor’s presence can help an investigation even before a case is ready for presentment to a grand jury. Decisions about search warrants, court-ordered electronic surveillance and subpoenas should be made by the prosecutor only after receiving all the necessary background and detail from investigators.

Feedback is also an important element in good investigator-prosecutor relations. Should an investigator want to make an arrest which the prosecutor feels is premature or request a search warrant at a time when it is not feasible, the prosecutor should advise the investigator as to any legal obstacles.

The learning process is a two-way street. As stated earlier, prosecutors are unfamiliar with the technical nature of arson investigations and terminology. Likewise, investigators do not always understand the legal requirements under which prosecutors must act. The prosecutor should take steps in advance of any particular case to meet with his arson investigators and learn how investigations are conducted. This is also the opportunity for the prosecutor to inform investigators what is expected of them when they are called to testify in court.

Get to know investigators

A fire investigator, aside from doing detective work, is an “expert,” who, like a medical examiner, will be called upon to state an “expert opinion,” and the prosecutor should therefore learn as much as he can about his “experts.” While it is not necessary for the prosecutor to visit every crime scene, it is valuable that each prosecutor assigned to arson cases endeavor at least once to accompany a fire investigator to a scene. The experience of seeing an investigation firsthand is extremely helpful in future preparation of cases for trial.

The more detail and foresight that goes into an arson investigation, the smoother and more effective individual trial preparation will be. The remainder of this article will discuss the actual preparation of an arson case for trial. Many suggestions may seem obvious, but most trials are lost not because of major flaws in proof but because fundamental rules were not adhered to.

The key to success at trial is getting the jury to understand the theory of the peoples case. Given the complex nature of most arsons, this is no easy task and unless the prosecutor thoroughly understands the case, there is little chance that the jury will.

Once prosperous, these New York apartments are representative of the effects of arson.

New York Fire Dept, photo, F. Murphy

For example, the highly specialized vocabulary of arson,investigations can pose problems. One of the biggest mistakes investigators make is that they neglect to speak in lay terms. What makes a good expert witness is not only the capacity to impress a jury with his knowledge but his ability to help them understand his findings.

Photographic evidence

Another valuable aid in explaining expert findings is photographic evidence. Great care should be used to take as many photographs as necessary to portray the crime scene. Of particular importance when photographing anything unusual is the use of a sufficiently wide angle to show both the unusual condition as well as the contrasting immediate area.

In addition to photographs of the crime scene, where possible, scale drawings or layouts should be made of the building in question. Nothing loses a jury’s interest more quickly than attempts to verbally describe physical locations. If, however, the witness is able to indicate on a diagram things such as “trailers” strategically located throughout a building, his point will be made. If investigators do not have the means to obtain such diagrams, a resourceful prosecutor can contribute to investigations by retaining qualified draftsmen from local or state police facilities.

Investigators should know that reports compiled during the initial investigation must be provided to the defense at trial. Unfortunately, this fact often prompts investigators not to document their findings. Because of the usual length of time between arrest and trial, it is essential that investigators’ reports be detailed and thorough, written with care while avoiding premature conclusions or guesswork. When prosecutors review these reports with investigators, care should be taken to recognize potential problems and analyze areas fertile for cross examination.

Observations of fire fighters

In addition to reports made by fire investigators, any observations put in writing by fire fighters, especially the first unit responding to the scene, should be obtained by investigators and turned over to the prosecutor. It is up to investigators to combine these reports and interview fire fighters and indicate items of particular significance.

For example, response time and the intensity of the fire when the first unit arrived may indicate that the fire’s spread was suspiciously rapid and that an accelerant may have been present. Whether or not a building was secure or evidenced a break-in will have a bearing on any contention of “exclusive opportunity.” If fire fighters had to use axes to break down locked doors, this should be brought out at trial. Weather conditions and the color of flames or smoke are also observations fire fighters make and should be noted by investigators.

It is extremely frustrating if, on the eve of trial when attempting to pin down these basic facts, memories fail and people contradict one another. It is up to an efficient fire investigator to assemble this data for possible future use by the prosecutor. Often, seemingly innocuous details become significant during trial.

Just as it is up to fire investigators to educate the prosecutor as to the importance of certain occurrences and facts uncovered, the prosecutors must prepare investigators to be witnesses. More and more, the defense bar is utilizing an increasing number of arson specialists in private practice and available for defense work. Many are former fire marshals or insurance investigators. The prosecutor must prepare investigators, often overworked, underpaid, and who have been involved in numerous cases since the one about to be tried, to testify effectively and convincingly, and they must be told what to expect on cross examination.

The prosecutor may decide to seek help from experts outside the fire investigator’s agency. Complex issues may call for this and fire investigators should not react adversely to such a decision. In his role as the on-the-scene expert, the fire investigator is irreplaceable, but when highly technical issues arise, the prosecutor is obliged to secure any assistance necessary to do a proper job of trial preparation.

The trial of an arson case is a complicated matter requiring the utmost preparation. Strong cooperation between prosecutors and fire investigators is the key ingredient to success in obtaining convictions. Prosecutors who are cognizant of the arson problem within their communities and who are willing to play a leadership role can be a dynamic force in arson suppression.

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