America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Pennsylvania: Dad Gets 2nd Chance After Junk Science Convicted Him of Killing His Kids

 Daniel Dougherty and his two sons
Daniel Dougherty and his two sons
14 years after his boys died in a house fire, Daniel Dougherty was sent to death row for their murder. Now, he's back in court with a new try for freedom.

On a summer night in 1985, flames swept through Daniel Dougherty's red-brick rowhouse in Philadelphia, killing his young sons who slept upstairs.

The 25-year-old mechanic told police he had been sleeping on a sofa in the living room when he woke just before 4 a.m. and saw his curtains on fire. He bolted outside and grabbed a neighbor's garden hose, ready to douse the blaze and rescue his sons, Daniel, 4, and John, 3, who shared a bed on the 2nd floor.

But it was too late. Dougherty tried breaking a window and climbing a ladder to reach the children but the smoke and flames blew him back. When authorities arrived, the bulky 6-foot-4 Dougherty, the son of a late policeman, was frantic.

To authorities, the hard-drinking repairman, who got into a fight with both his girlfriend and ex-wife that night and skipped an Alcoholics Anonymous meeting, was the prime suspect. One officer claimed he physically blocked Dougherty from charging into the burning home. When the cop asked for Dougherty's name, he allegedly replied, "My name is mud and I should die for what I did."

The children died from smoke inhalation and carbon monoxide poisoning, a medical examiner later concluded.

An hour after the inferno that took his children's lives, Dougherty was being interviewed by homicide detectives. "I ain't got nothing to remain silent about," Dougherty said as he waived his Miranda rights. Lacking evidence to charge Dougherty, police released him, the Philadelphia Inquirer reported in 2014.

But 14 years later, Dougherty would be charged with the murder of his sons, after his estranged 2nd wife - with whom he was in a custody battle for a child born after the boys died - called police and claimed he confessed to the alleged crime.

Dougherty was convicted in 2000 and put on death row - a sentence that was later vacated after prosecutors agreed Dougherty didn't have effective counsel. The grieving dad has always maintained his innocence. Now, with the help of arson experts on a mission to debunk mythical theories that are still employed by authorities, Dougherty has the chance to prove it.

A new trial for the 56-year-old began Monday in Philadelphia - 2 years after an appellate court found that Dougherty's lawyer failed to challenge the state's scientific evidence claiming the fire was arson, the Inquirer reported.

Had the jury heard and believed a fire science expert at the time, it "would have had reasonable doubt about [Dougherty's] guilt and would have been compelled to acquit him," the court wrote in its decision in 2014, according to the Inquirer.

At the heart of the case is flawed and disproved forensics used to seal Dougherty's conviction--techniques that are believed to have led to wrongful convictions, and some executions, across the country.

"The tragedy of losing your child in a fire, then being accused and convicted of intentionally setting that fire ... I can't even imagine the mental torture of that," Marissa Boyers Bluestine, legal director of the Pennsylvania Innocence Project, told The Daily Beast.

"The problem is there's no evidence that he's guilty. Zero," Bluestine added. "The evidence came from the fire marshal who was talking about scientific techniques that have been disproven, having no reliability whatsoever.

"You have someone who's not just convicted, but on death row for that. If it happens to him it quite literally could happen to anybody."

In some cases, advances in fire science is helping some wrongly convicted prisoners earn their freedom. In 2014, a South Korean-born man's arson-murder conviction was overturned after he spent 24 years behind bars.

Han Tak Lee, now 81, was accused of killing his 20-year-old daughter in a fire in 1989 but always said the blaze was an accident. A judge concluded his conviction was based on since-discredited arson science.

For other inmates, the reexamination came too late.

In 2004, Texas officials executed Cameron Todd Willingham - accused of setting a blaze that killed his 3 young daughters in their Corsicana home 13 years before, and whose tragic end spawned a New Yorker investigation [Trial by Fire, by David Grann -- a must-read. DPN]. Like Dougherty's case, Texas prosecutors relied on outdated arson theories and testimony from a jailhouse snitch, who later recanted.

5 years after Willingham's death, renowned fire expert Craig Beyler concluded the Texas fire marshal had "limited understanding" of arson science and that his findings "are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."

Experts fighting for Dougherty are expressing similar sentiments. Renowned arson investigator John Lentini, who is expected to testify at the new trial, has said the original probe was so flawed the cause of the blaze should have been ruled "undetermined."

Philadelphia Assistant Fire Marshal John Quinn concluded the fire had 3 points of origin inside the house, based on burn marks, and therefore was intentional - information Dougherty's attorney never challenged.

Quinn declared the blaze started in three places: a loveseat, a sofa, and a spot beneath a dining-room table. He also testified that Dougherty's claims that he tried to save the kids weren't believable, as his body showed no exposure to flames or smoke, the Inquirer reported.

It took the jury only 3 hours to find Dougherty guilty of murder in 2000, and another 3 1/2 hours to sentence him to death, the Inquirer reported.

Dougherty sobbed on the witness stand as he denied igniting the blaze that killed his children. "They were my life," he cried, adding that he took them on a motorcycle ride that day, changed their clothes, and flipped their mattress that night.

When an assistant district attorney asked Dougherty why he immediately darted from the house instead of upstairs, Dougherty answered, "Everyone makes mistakes. I made a big one."

Lentini and other experts who've reviewed Dougherty's case say the 3 burning spots are likely the result of "flashover," a naturally occurring phenomenon where rising heat collects at the ceiling until the temperature reaches 1,100 degrees and the room combusts. Flashovers can create burn marks such as those seen in Dougherty's home.

"Unfortunately, it is not possible given the level of destruction and documentation, to determine where exactly this fire started or how it started," Lentini wrote in a post-conviction report. "What I can state with certainty is that the evidence does not support a determination of 3 points of origin, which was the sole basis for Lt. Quinn's determination that the fire was intentionally set.

"Lt. Quinn's conclusion that the fire was intentionally set has no scientific basis, then or now," Lentini said in a report submitted to the court.

This didn't stop the law enforcement of Philadelphia from presenting what experts call junk science. "You're talking about the 5th-largest city in the country. This isn't backwater," Bluestine told The Daily Beast. "It's supposed to be among the most sophisticated law enforcement departments. Especially when you're talking about a capital case, there's no excuse."

Philadelphia authorities have stood by Dougherty's conviction.

During the trial's opening arguments on Tuesday, assistant district attorney Jude Conroy said evidence would show Dougherty was guilty, beyond all doubt, the Inquirer reported.

Conroy told jurors Dougherty was drunk, angry, and ended up alone in the house after an argument with his live-in girlfriend and the boys' mother. Then the prosecutor reinforced fire marshal Quinn's findings, telling the court about "an open flame to the couch, to the loveseat, to items under the table."

Dougherty's attorney, David Fryman, questioned why cops didn't charge Dougherty until 14 years after the fire, if authorities were certain of his guilt, according to the Inquirer.

Fryman told jurors investigators failed even to snap a photo of the stove, to show whether the knobs were in an on or off position, the Inquirer reported. "The commonwealth claim that this fire was intentionally set doesn't have any validity," Fryman said.

Bluestine, of the Innocence Project, said that by the time Dougherty's trial began, Philadelphia authorities should have been trained in scientific standards laid bare by the National Fire Protection Association. The council became concerned about the validity of fire investigations in 1985 and published its 1st guide 7 years later, Lentini says in a paper.

"The myths are slowly dying out ... but there are still practitioners who use them today, with disastrous consequences," Lentini wrote.

Dougherty's murder and arson charges came in 1999, well after the fire, when his estranged 2nd wife, Adrienne Sussman, told police he confessed to sparking the inferno. At the time the charges were made, Sussman was in a custody battle with Dougherty over their son, Stephen.

Philadelphia prosecutors wasted no time in making Dougherty a villain. They claimed he set the fire in vengeance against two women who wronged him: the girlfriend with whom he lived and the mother of his boys, from whom he was separated. Witnesses labeled him a drinker, and said he was possessive toward women and called his wife names, the Inquirer reported.

While Sussman never testified at Dougherty's 2000 trial, the prosecution presented testimony from 2 jailhouse informants - in prison on multiple convictions and charges and promised reduced sentences by prosecutors - who said Dougherty confessed to them while in custody, the Inquirer reported.

Stephen Dougherty, now 24, told The Daily Beast he speaks with his father every day and said he just wants to come home. Stephen grew up without both parents, as his mother, who struggled with drug addiction, passed away in 2005.

Because of his mom's drug use, he said, he spent weekends and weekdays with his dad, who took him off-roading in his truck and taught him to play basketball and baseball. His father was just a "regular, average ... hard-working man," he said.

The younger Dougherty said that one day, he hopes to rebuild cars and live in a house with his father.

"I know my dad's not guilty," Dougherty said in a phone interview. "He's the farthest thing from a bad guy. He loved life, and it was taken away from him."

"My dad's not a monster," Dougherty added. "He's not the man that the DA is trying to make him out to be ... fire is unpredictable, and it can take anybody's life."

Source: the dailybeast.com, Kate Briquelet, march 23, 2016

- Report an error, an omission: deathpenaltynews@gmail.com - Follow us on Facebook and Twitter

Most Viewed (Last 7 Days)

Texas: With a man's execution days away, his victims react with fury or forgiveness

Ohio executes Robert Van Hook

Texas executes Christopher Young

Saudi Arabia executes seven people in one day

20 Minutes to Death: Record of the Last Execution in France

Ex-Aum member Yoshihiro Inoue’s last words: ‘I didn’t expect things to turn out this way’

Execution date pushed back for Texas 7 escapee after paperwork error on death warrant

Texas Board of Pardons and Paroles rejects clemency for Chris Young

Oklahoma: Death row inmate’s legal team hopes DNA testing on key piece of evidence will exonerate him before execution

Ohio Governor commutes one sentence, delays another