In July, the Texas Forensic Science Commission found that arson investigators used flawed science in the trial of Cameron Todd Willingham. Willingham was convicted of setting the 1999 fire that killed his three children. He was executed in 2004, despite serious questions about his guilt. The case garnered national attention last year after a David Grann investigation in the New Yorker argued that Willingham was innocent and that there was no evidence the fire was intentional.
There's now another questionable arson-related death penalty case percolating, this time in Pennsylvania, where Daniel Dougherty sits on death row for setting the fire that killed his two sons in 1985. Arson experts John Lentini and Angelo Pisani have found that, similar to the Willingham case, fire investigators in Pennsylvania relied on outdated and disproved science, and that there is no evidence the fire in Dougherty's case was deliberate.
In recent years, DNA testing has exposed some serious problems with forensic science. Forensic specialists often make exaggerated claims in the courtroom, expressing levels of certainty that aren't always grounded in science. In cases where it's certain that a crime was committed and for which DNA is available for testing, the challenge is getting prosecutors to agree to the tests. But in cases like that of Dougherty and Willingham, the question isn't who committed the crime, but whether a crime was committed in the first place.
DNA isn't of much use in those cases. But during a panel discussion at the Georgetown Law Center last year (disclosure: I moderated the panel), Lentini suggested one reform that may help defendants in these cases obtain a fairer crack at justice: bifurcated trials. Courts would hold an initial trial to determine if a crime was committed, then a second to determine who committed it.
The problem, Lentini explained, is that by asking the jury to answer both questions at once, jurors are nudged toward answering both in the affirmative. The fact that there's someone sitting in the defendant's chair can push jurors toward concluding that at least some crime was committed. Once they've determined there was a crime, the person on trial is often seen as the only—or at least most likely—person to have committed it. Furthermore, when it comes to arson and infant death cases, there's often just one likely suspect, and the presence of that suspect as a defendant implies that a crime was definitely committed. In arson cases, it's the person who was home at the time of the fire. In infant death cases, it's the person who was with the child at the time the child died.
Lentini added that these trials can then too easily become little more than judgments of a defendant's character; if the scientific evidence is a wash, the verdict may hinge on whether jurors believe the defendant is a good person, or a person capable of violence. In Willingham's case, for example, prosecution witnesses testified about Willingham's emotional reaction after the fire, and whether it fit that of a grieving father or a man who had just committed murder. The prosecution also brought in a jailhouse informant—a notoriously unreliable source of testimony—who claimed Willingham had confessed to him. Neither tactic is uncommon in these cases, and they can have the effect of getting the jury to look past the scientific evidence that establishes whether a crime was even committed in the first place. Once a witness says the guy was acting strangely, once his cellmate says he confessed, it isn't difficult to see how some jurors might then dismiss doubts about the quality of the prosecution's forensic evidence alleging a crime was even committed.
We already have bifurcated trials in other areas of the justice system. The aim is to isolate the portion of a trial that requires a judgment not influenced by evidence from other portions of the trial. In civil cases, the awarding of damages is often separated from determining liability. In divorce cases the division of property may be a separate proceeding from the determination of who gets custody of the couple's children. In death penalty cases we separate the guilt portion of the trial from the sentencing portion.
In homicide cases where the defense argues that a death was accidental, it makes sense to resolve that question first. Each side would bring in experts, but there would be no defendant in the courtroom and no discussion of who committed the crime. This approach would not only work in arson cases, but also in child molestation cases, infant death cases (where the defense claims the death was accidental), and cases where there's debate over whether a death was suicide or homicide.
In the 20 years since DNA testing began exonerating the wrongly convicted, there's been much talk about how to reform the criminal justice system. Much of it has understandably addressed how to improve the quality of the science used in the courtroom. But it's also important to consider some structural changes, to look at ways we can help juries deliberate verdicts as objectively as possible. In cases where the primary issue is not who committed the crime but whether a crime was even committed, bifurcated trials might be a way to prevent jurors from confusing these questions.
Radley Balko is a senior editor at Reason magazine.