Published Oct. 2, 2011 12:15 p.m.
By Casey Farrar Sentinel Staff
A murder trial scheduled to begin Monday in a deadly fire has been postponed by a legal challenge that may keep the prosecution’s fire experts from testifying that they believe the fire was intentionally set.
Keene Sentinel file photo
David B. McLeod, 55, of Sacramento, Calif., was charged in June 2010 with four counts of second-degree murder for the 1989 deaths of newlyweds Carl R. and Lori M. Hina, their 4-month-old daughter Lillian, and Carl’s 12-year-old daughter Sara Jean.
Prosecutors say McLeod started the fire that killed the Hinas and they plan to bring in fire science experts to testify that the fire was caused by arson.
But attorneys for McLeod argue that since the experts based their findings on the statements of a woman who died more than six years ago, McLeod’s constitutional rights would be violated because she couldn’t be questioned in court.
In their argument they cite several cases, including one recently ruled on by the U.S. Supreme Court. (See story below).
Attorneys for both sides presented their arguments on the subject in written motions and during pre-trial hearings in Sullivan County Superior Court in May and July.
Last month, Judge Marguerite L. Wageling issued a 41-page ruling in favor of McLeod, barring the state’s experts from testifying on the cause of the fire because of their reliance on the statements of the late Sandra Walker, in whose apartment the fire started.
Prosecutors Janice K. Rundles and James T. Boffetti of the N.H. Attorney General’s Office have responded with a motion asking the judge to reconsider her ruling and, if not, to clarify some aspects of it. McLeod’s public defenders, Caroline L. Smith and Thomas A. Barnard, have objected, saying the ruling should stand.
In the state’s motion, prosecutors wrote that if Wageling doesn’t modify or reverse her ruling, they will likely appeal to the state’s Supreme Court because they feel their ability to prove the charges against McLeod beyond a reasonable doubt will be “seriously compromised.”
“It is a charge of arson-murder, so our feeling is that it would make it extremely difficult to go to trial without a fire expert to testify that it was arson,” Rundles said in an interview last week. “Our opinion is that it was correct and important for the experts to rely on (Walker’s) statements.
“I’m not sure you would find a reputable fire science expert who wouldn’t consider (her statements).”
McLeod’s case, which was the first arrest by the N.H. Cold Case Unit formed in 2009, was originally slated to go to trial in August.
State asks judge to reconsider ruling
The state plans to call three fire science experts during the trial to testify: former N.H. Fire Marshal investigator Thomas R. Norton; Special Agent Andrew Cox, a fire investigator for the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; and Special Agent John Pijaca, another fire investigator for the federal agency.
Norton, who is retired, was one of the original investigators in the Jan. 14, 1989, fire.
In the weeks following the blaze, Norton interviewed multiple witnesses, including Sandra Walker, and conducted a “controlled burn” test by burning a piece of stuffing from the couch believed to be the fire’s point of origin. The test had to be stopped after six minutes because it created so much smoke, according to court documents.
Norton determined that the blaze on the couch was sparked by an open flame, not a smoldering cigarette as had been named early in the investigation as a possible cause, and ruled the fire arson.
Two decades later, when the newly formed Cold Case Unit reopened the arson investigation, Cox was called in to review Norton’s findings. He determined that Norton’s methods of investigation met current fire investigation standards and backed Norton’s ruling that the fire was arson.
Pijaca was later called in to review Cox’s report and came to the same conclusions, according to court documents.
But all three drew from information gathered in interviews with Walker about the time frame of the fire and what she saw and did after the fire started.
In her ruling, Wageling said Walker’s statements to investigators dealt with her perception and memory and allowing the state’s experts to testify on a ruling based on those statements would violate McLeod’s right to confront her during the trial.
“This is precisely the type of testimonial information that is best tested through cross-examination,” Wageling wrote in the ruling. “Problems with consistency and bias cannot be fleshed out before the jury because Walker cannot be cross-examined.
“The jury must accept Walker’s perceptions as proffered by the experts, subject to all unascertainable errors, biases and omissions.”
In prosecutors’ motion to reconsider, they argue Norton and the other experts reached their conclusions independently, using Walker’s statements among several other pieces of information including burn patterns of the fire, fire science studies and several other witness statements.
But McLeod’s attorneys argue that while the investigators talked to other witnesses, they relied heavily on Walker’s statements because she was the only person in the apartment in the moments after the fire started.
A trial date could be months away
All this leaves it unclear when McLeod’s trial will take place, but it could mean several more months of delay.
If Judge Wageling decides not to reverse or modify her decision on the expert witnesses, prosecutors have one month to file an appeal with the state Supreme Court.
The decision whether the state would appeal ultimately comes down to approval by N.H. Attorney General Michael A. Delaney. Rundles said she’s confident Delaney would agree to appeal.
If so, a hearing on the appeal would then be scheduled in Supreme Court.
McLeod, meanwhile, remains jailed without bail while he awaits his trial. August marked his 55th birthday — his second behind bars.
Looking for precedence
Among the dozens of cases cited in arguments by the defense and prosecution in the Keene case is a New Mexico case recently ruled on by the U.S. Supreme Court.
The 2005 drunken driving case, Donald Bullcoming vs. New Mexico, was ruled on by the court in June, a month after a pre-trial hearing in David B. McLeod’s case.
The Supreme Court ruled 5-4 that Bullcoming’s constitutional right to confront an adverse witness was violated when prosecutors called a lab technician to testify about Bullcoming’s blood-alcohol test who did not perform it.
In August 2005, Bullcoming rear-ended a pickup truck at an intersection in Farmington, N.M., according to Supreme Court documents.
Bullcoming, who the other driver said had bloodshot eyes and smelled of alcohol, left the scene and was later caught by police and failed a field sobriety test. He was arrested for drunken driving and, because he refused a Breathalyzer test, police got a warrant to perform a blood-alcohol test, documents show.
At trial, the prosecution unexpectedly called a different lab technician than the one who did the test, claiming that the tester was unavailable because he had been placed on unpaid leave.
Bullcoming was convicted of aggravated driving while under the influence of alcohol and later appealed the decision, eventually taking it to the Supreme Court.
In the majority ruling, the court said Bullcoming’s rights were violated because “the accused’s right is to be confronted with the analyst who made a certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
Prosecutors in the McLeod case have argued that the circumstances in Bullcoming don’t apply to the New Hampshire case. Attorneys for McLeod have said the ruling further supports their assertion that reliance by the prosecution’s fire science experts on statements from a deceased witness would violate McLeod’s constitutional rights, because the witness can’t be cross-examined.
- Casey Farrar
