In the early morning hours of August 24, 1985, flames engulfed Daniel Dougherty’s two-story row house in Northeast Philadelphia, killing his sons Daniel, 4, and John, 3.
Dougherty, the lone survivor, told authorities in the wake of the fire that he was asleep on the building’s first floor when the blaze broke out and couldn’t get to the second floor to rescue the boys from the bedroom they shared.
After inspecting the scene, fire marshal John Quinn determined that neither faulty wiring nor a gas explosion were to blame and labeled the blaze suspicious. In his report, Quinn pointed specifically to burn patterns around three pieces of furniture that he said showed the fire had started at three separate points, an indication of arson.
Despite those findings, it wasn’t until 1998 that Dougherty was charged with killing his sons after his estranged wife told investigators he had admitted setting the fire.
“We couldn’t prove until that point that it was him,” says assistant district attorney Barbara Paul, who has handled the case for nearly seven years.
Though Dougherty testified at trial that he did not start the fire, he was convicted of two counts of first-degree murder and sentenced to death by lethal injection. In the dozen years since, Dougherty—whose sentence was commuted to life in prison in February—has fought to have his conviction overturned. And for most of that time, a Ballard Spahr team has helped him wage that fight.
Led by Philadelphia-based labor and employment partners Shannon Farmer and David Fryman, a total of more than 50 Ballard lawyers and paralegals have contributed a combined 8,000-plus hours on the pro bono assignment since taking it on in 2004. As Farmer puts it, “This case has a particularly tortured history.”
Farmer and Fryman signed on to the case after the Capital Habeas Unit of the local Federal Defenders Office contacted Ballard based on the firm’s work on a separate capital case. At the time, Dougherty’s initial appeal was pending. In the course of investigating the matter, the pair became convinced Dougherty was on death row largely due to outdated arson science. Says Farmer: “I believed that once we could just make people see what had happened here, it would be quick.”
Since the early 1990s, advances in arson science have shown that some burn patterns and other phenomena previously considered evidence of arson actually occur naturally. Those discoveries have sparked concerns among some lawyers and forensic scientists that innocent people may be imprisoned for setting fires that were in fact accidental.
Just this summer, for example, Michigan father David Lee Gavitt was released from prison after serving 27 years of the life sentence he received following his conviction on charges he set a fire that killed his wife and children. Gavitt’s release came after lawyers representing him used modern arson science to cast doubt on whether the fatal blaze was the result of a criminal act. Even more worrisome to some experts is the possibility that an individual wrongfully convicted of committing an arson-related killing based on outdated fire science could be put to death. The best-known case in this category involves Cameron Todd Willingham, a Texas father executed in 2004 after being found guilty of setting a deadly fire that some experts say may not have been arson. (The Willingham case was the subject of a much-discussed New Yorker article.)
In seeking to clear Dougherty’s name, Farmer and Fryman followed a two-pronged legal strategy, filing a cert petition with the U.S. Supreme Court in 2005 and submitting a petition for relief under Pennsylvania’s Post Conviction Relief Act (PCRA) the following year. Though the Supreme Court refused to hear the case, the Ballard lawyers believed Dougherty could win PCRA relief based on claims that included lack of due process (the 14-year lapse between the fire and Dougherty’s prosecution); ineffective counsel (the failure of Dougherty’s trial lawyer to consult arson experts); and the existence of new evidence (developments in arson science that undermined the prosecution’s theory).
As is standard, the PCRA request was assigned to Court of Common Pleas Judge Renee Cardwell Hughes, who had presided over Dougherty’s trial. The Ballard team ultimately asked Hughes to recuse herself from the case after she described Dougherty as “vile” during a hearing. When the lawyers could not find the comment in the transcript of the proceedings, during a subsequent hearing, Hughes acknowledged having asked the court reporter privately to strike it from the record. Hughes, who also said that as judge her job was to “defend the decision of my jury,” rejected Ballard’s recusal request in February 2009 and dismissed the PCRA petition a few months later.
The case took another twist when the Ballard team appealed that decision to the state’s Supreme Court, which ruled in 2011 that Hughes had acted improperly and that a different judge should convene new PCRA proceedings. (In his concurring statement, one justice described the altering of the court record by a judge as an “extraordinary action” that “should precipitate serious repercussions.”)
An evidentiary hearing before Court of Common Pleas Judge Steven Geroff as part of the PCRA process followed in March 2012—a major milestone for Dougherty’s legal team. “That was the first time our experts had testified,” Farmer says.
John Lentini, a former Georgia crime lab scientist and independent investigator who has offered fire analyses in some 200 cases, was one of those experts. Lentini disputed the fire marshal’s conclusion that the fire at Dougherty’s home was arson. He says arson science had advanced so far between the time Quinn issued his report and when Dougherty went to trial that the latter’s lawyer could easily have produced expert testimony debunking Quinn’s analysis.
“The report said three points of origin,” says Lentini, countering that “you can’t see three separate areas of burning.” According to Lentini, that’s because the fire at Dougherty’s home entered a stage called flashover in which room temperature reaches about 1,100 degrees Fahrenheit and flammable items throughout a room—even those not in direct contact with flames—ignite simultaneously. According to Lentini, modern arson science has established that floor burns such as those cited as evidence of where the blaze in Dougherty’s house began occur naturally in full-room fires.
The Philadelphia District Attorney’s office initially said it would present its own expert testimony during the PCRA proceedings, but withdrew its request to do so early this year. Asked why, prosecutor Paul says simply: “We didn’t think we needed an expert.” The district attorney’s office also asked the court to commute Dougherty’s death sentence in order to focus on the Ballard team’s challenge to the underlying conviction. The commutation request made moot a separate set of claims Dougherty’s lawyers raised related to his sentencing as part of the PCRA process. “The D.A.’s office felt that it was not worth fighting about the penalty phase,” says Paul. “We agree that it could have been done better. The standards have changed since then.”
After Geroff granted the commutation request, Dougherty was moved from death row to a regular cell at a maximum-security state prison in Waynesburg. “He got to hug his dad for the first time since 1999,” says Farmer. “That was amazing.”
Last month, however, Dougherty and his attorneys got some bad news. On September 6, Geroff dismissed the PCRA claims. In his decision, the judge concluded that while the performance of Dougherty’s lawyer at the original trial met the definition of ineffective counsel, it alone was not enough to reverse the conviction. In order to win the relief he sought, the judge wrote, Dougherty had to also show the lawyer’s failings were crucial to the jury’s verdict.
Geroff also said in his decision that though the two fire scientists presented by the Ballard team may have effectively cast doubt on whether fire marshal Quinn correctly interpreted the burn marks at the scene, the expert testimony wasn’t enough to call into question his conclusion that causes such as an electrical fire or gas explosion were not to blame. (In their testimony, the experts had expressed concerns that Quinn may not have given these potential causes enough consideration.)
Asked his reaction to the ruling, Farmer says she and her Ballard colleagues “were disappointed, but also just shocked.” Nonetheless, the fight will go on. She and Fryman are preparing to appeal the decision to the state’s Superior Court.