Daniel Dougherty
Convicted: 1986
Murder of two sons

Sentence: Death
Arson Denied

CRIME: Dougherty was arrested for murder 14 years after his two sons died in a house fire that he escaped.

SENTENCE: Death (2000)

PROSECUTION'S ARGUMENT: While the fire was initially ruled by investigators to be intentionally set, no arrests were made until 14 years later when Dougherty's second ex-wife (not the mother of the deceased children) claimed that he confessed to starting the fire with gasoline. Two jail house informants also say that Dougherty confessed to them. The original fire investigator testified that there were three origins of the fire, which indicated that the fire was intentionally set. According to court records, police were worried by his erratic behavior when they arrived on the scene.

DOUGHERTY'S STORY: Dougherty was asleep on his couch when he woke up to a fire in his living room. He ran outside to a neighbor's to grab a hose. When it was too short, he aimed for a window -- but the glass shattered, leaving a cut on his arm. The home was engulfed in flames. He tried to re-enter the house, but the fire was overpowering.

DISPUTED EVIDENCE: Dougherty's first attorney has admitted that he did not seek help from other arson experts. Since his conviction, three arson investigators have re-examined the case: Gerald Hurst, John Lentini and Angelo Pisani. Lentini argues that there is no evidence of arson, noting that:
+  The conclusion that there were multiple points of origin was invalid and not supported by evidence.
+  The original investigator's conclusions of arson were based on his subjective experience and not actual science.
+  Dougherty's counsel failed to challenge the fire investigator's findings, which would have been easy to do, given fire investigation literature that was available in 2000.
+  The original investigator didn't dispel the possibility that the fire was a result of flashover, and didn't accurately explain the phenomenon to the jury.

After Gerald Hurst's examination of the case, he also believed that the evidence, which appeared to indicate multiple origins of the fire, was caused by flashover.
Dougherty's new attorneys say that studies show that jailhouse informants' testimonies are not reliable -- here is one such
study [PDF] from the Northwestern University Law School. The mother of the boys that were killed in the fire, Dougherty's first wife, has said that she doesn't believe that he murdered the children.

NOW: Dougherty's case is in the hands of the Pennsylvania Supreme Court. Because of frustrations with the review process and the length of time it will take for the state court to review the case, Dougherty's new attorneys have filed a habeas petition with Federal Judge Juan Sanchez with the hope that he will intervene, and are filing status reports with him every six months.

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Junk science? Another inmate on death row fights to disprove arson

1px 1px-1 1px-2http://articles.cnn.com/2010-08-12/justice/pennsylvania.arson.dougherty.case_1_cameron-todd-willingham-arson-execution-date?_s=PM:CRIME

August 12, 2010|By Stephanie Chen, CNN


    Danny Dougherty, 4, and Johnny Dougherty, 3, died in a fire in their home in 1985. Their father, Daniel Dougherty, was found guilty of setting the blaze, but he is appealing his case.

    This is the story of two fathers who drank too much and fought with their wives but, their families say, loved their children more than anything in the world.

    The two never knew each other. One was in Texas and one in Pennsylvania, but each watched a fire swallow their home with their children inside.

    One father, Cameron Todd Willingham of Corsicana, Texas, was convicted on murder charges; authorities said he set the fire that killed his three children in 1991. He was executed by lethal injection in 2004.



      Across the country, at a prison outside of Waynesburg, Pennsylvania, where authorities say they hold the "worst of the worst," is 50-year-old Daniel Dougherty. He, too, was found guilty of deliberately igniting fires in his home that killed his two sons, Danny, 4, and Johnny, 3, in 1985. Police arrested Dougherty 14 years later, when his estranged wife came forward and claimed he confessed. A jury found him guilty on capital murder charges in 2000.

      He is awaiting death.

      Last month, a Texas state board admitted in a preliminary report that flawed arson science was used in Willingham's investigation.

      The board's announcement raises a frightening question: Could the state of Texas have executed an innocent man?

      Like Willingham, Dougherty has maintained his innocence from the start. He is trying to prove he isn't responsible for the flames that engulfed his house and that he is also the victim of flawed arson science.

      "We have an innocent man on death row who has been languishing there, and there is absolutely no evidence that a crime occurred," said his attorney, David Fryman. "We've been trying our best to right that wrong."

      Dougherty and his attorneys at Ballard Spahr in Philadelphia, Pennsylvania, are waiting on the Pennsylvania Supreme Court to decide whether to hear his petition for post-conviction relief filed in 2006. A crucial element of the appeal is the reports of two arson investigators who have re-examined the evidence and found no conclusive indicators of arson.

      With science on his side, Dougherty hopes the court will set him free -- before it's too late. No execution date has been set.

      Dougherty's version of the blaze doesn't paint him as a murderer but as a failed hero, who tried twice to rescue his sleeping sons with a watering hose and ladder, according to court records. By the time authorities extinguished the fire, his sons had already died from inhaling the toxic fumes.

      Page 2 of 6)

      CNN requested an interview with Dougherty in prison, but his attorneys declined. They did assist CNN in reaching out to Dougherty through letters. Dougherty declined to be interviewed, but wrote back, calling his situation "an injustice that has been done to my loved ones and I." He added that, "Words cannot describe the depths of anguish and frustration I feel."

      Is arson science to blame?

      John Lentini and Angelo Pisani -- two of the country's renowned arson investigators -- have conducted thousands of fire scene inspections. Five years ago, they received a call from Dougherty's attorneys.



      Separately, the investigators combed through the reports, testimony, photographs and other evidence from the original fire scene. Contrary to the fire investigator's original report in 1985, Lentini and Pisani argued there were no signs of arson in Dougherty's home. Such expert testimony was never presented by Dougherty's attorney in his 2000 trial.

      In the last two decades, advances in arson science have spurred some investigators and lawyers to question past arson convictions. Some attorneys estimate dozens or even hundreds of cases may have been based on faulty arson science. There are no figures on how many arson cases have been successfully refuted.

      Dougherty's original attorney gave a statement in the appeal that he didn't seek assistance from outside fire investigators. He admitted in Dougherty's appeal that his team had "presented little from which to make an argument for life."

      The National Fire Protection Association, a fire safety organization, reported there were more than 200,000 intentional fires set to structures in 1980. In 2007, that number dwindled to 55,000. Arson investigators say the steady decline of arson cases can be interpreted different ways: Either there are dramatically fewer cases of intentional fires, or arson science has reduced the number of fires being categorized as intentional. This suggests that some previous cases deemed arson may not have been, they say.

      In their report on the Dougherty case, Lentini and Pisani say they believe Philadelphia Assistant Fire Marshal John Quinn, who led the initial probe, relied on outdated arson investigation techniques.

      In his 1985 report, Quinn had determined three fires took place on the first floor of Dougherty's brick home: one by the sofa, another by a love seat, and a third under the dining room table.

      (Page 3 of 6)

      Quinn concluded only a person could have set the fire in three separate places. Quinn declined CNN's request for an interview.

      "There is no evidence to indicate it is arson," said Lentini, who provided an expert report in Dougherty's 2006 appeal and also reviewed the Cameron Todd Willingham case in 2004. "The only evidence he [Quinn] has is his three points of origin and those three points of origin are a figment of his imagination."

      Pisani and Lentini argue that the multiple burning spots were likely the result of a "flashover" -- a naturally occurring phenomenon during a fire. In a flashover, the enclosed room can get very hot, reaching temperatures as high as 1,100 degrees Fahrenheit. The room eventually combusts, resulting in various burning points.



      Flashover fires can be mistaken for arson because they leave the appearance of multiple points of ignition, they said. Lentini added Pennsylvania is "on their way to executing an innocent man."

      Pisani and Lentini also reported the origin of the fire could not be determined because of extensive damage to the room.

      The Philadelphia District Attorney's Office rejected Dougherty's claims of innocence. They said a flashover fire requires an enclosed space, but that Dougherty's living room, where the fire occurred, was not an enclosed space since there was a stairwell. They also argued Dougherty managed to emerge from the house without burns or signs of smoke inhalation.

      "We are litigating this," said Joseph McGettigan, first assistant district attorney at the Philadelphia District Attorney's Office. "The jury's verdict was a proper one."

      The Dougherty trio: 'Danny loves kids'

      Daniel Dougherty, son of a Philadelphia police officer, was born in 1960 and grew up in a working-class neighborhood with five siblings.

      Known as the "outgoing" middle child, he made friends and girlfriends easily. His father's death from heart problems crushed the 14-year-old Dougherty, who began to drink.

      Dougherty never finished the 10th grade. He met his first wife, Kathy Fox, and they had their first son, Danny, in 1980. Two years later, they had their second boy, Johnny.

      Danny, 4 years old at the time of the fire, was fearless and curious. He liked riding roller coasters with his father. He constantly peppered family members with questions. Johnny, 3, was quieter.

      Dougherty was a functioning alcoholic, his family says. He rarely missed a day of work as a mechanic, his family said. He brought his sons to work so they could spend more time together.

      "Danny loves kids, no matter whose kids they are," said his older brother, Norman Dougherty, 57, of Philadelphia. "He loves my kids, his nieces and nephews. He'd take them to the park. He was good like that."

      Dougherty's older sister, Karen Dougherty, 53, invited them over for Sunday night dinners at her home. She said her brother relished in his role as a father. He was the first to take his children -- and hers -- sledding each winter.


      "Our father passed away when my brother was young so he always had the kids close to him to make sure nothing would happen to them," she said.

      On August 24, 1985, the night of the fire, Dougherty was supposed to be at an Alcoholics Anonymous meeting. He skipped the meeting and instead went to a bar, where he got into a verbal argument with his girlfriend at the time (she was not the mother of the two boys). He came home, made himself dinner and fell asleep on the sofa in his living room, according to his testimony at trial. He said he awoke to see the curtains in flames. His children were asleep upstairs.

      He ran outside to get the neighbor's garden hose, but the hose was too short. He tried to get water near the window of the house, but he was too late. Flames were already bursting from the house.

      The glass exploded, cut his arm and pushed him down.

      Next, he grabbed a wooden ladder. But the fire was too powerful. He testified it "blew him down."

      "He was so destroyed," said Judy Sorling, 54, who still lives several houses away on Carver Street where the fire took place. She told CNN she saw Dougherty standing with the hose, attempting to put the fire out. "He kept yelling for help."

      When firefighters arrived, Dougherty was frantic, screaming at police to save his children. His aggressive and erratic behavior worried police. Authorities shoved his face in the mud and he was taken away, court documents say. Dougherty testified he wanted to die at that moment.

      Authorities sifted through the charred remnants of the home and determined the fire had been intentionally set.

      Police questioned Dougherty and his family members, but no arrest was made.

      Are arson investigations an art or science?

      Scenes from popular television shows like CSI often depict detectives relying on forensic science and lab work to draw conclusions. But in the realm of arson investigations, experts say science has played a small role until more recently.

      Until 1992, some arson experts say, guidelines for determining arson were largely based on hand-me-down myths practiced by fire investigators with little formal training. In 1992, the National Fire Protection Association released its first arson guidebook based on years of studies and simulations.

      The guidelines, known as NFPA 921, were initially met with resistance from fire marshals and officers across the country, who believed arson investigations were an art rather than a science.

      "It was gumshoe work, not really analysis and conducting studies," said Gerald Hurst, an arson investigator with a Ph.D. in chemistry, who examined the arson findings in the Cameron Todd Willingham investigation from 1991. He concluded the arson science used in his case was "junk."

      In 2006, Hurst independently examined Daniel Dougherty's case. Hurst, too, believed that the multiple burning points were the result of a flashover fire.

      The fire that killed three people in the Willingham case in Texas happened in 1991, a year before NFPA 921 was released. In February 2004, Willingham was executed. Later, three reviews of evidence by outside experts concluded the fire should not have been ruled arson. The reports stated a flashover was likely responsible for the fire at Willingham's home.

      "There can no longer be any doubt that an innocent person has been executed," said Barry Scheck, co-director of the Innocence Project, which uses DNA evidence in efforts to prove the innocence of people they believe were wrongly convicted. "The question now turns to how we can stop it from happening again."

      From prison, a father waits for a second chance

      In the years after the fire that killed his two sons, family members said Daniel Dougherty changed. His addiction to alcohol intensified as he tried to cope with his loss. He eventually divorced his wife and remarried, then divorced again.

      Dougherty received a surprise visit from police in 1999, about 14 years after the fire. His second wife, Adrienne Sussman, had reported to police that he confessed to using gasoline in the fire. Dougherty was arrested.

      Page 6 of 6)

      Sussman's claim should have been dismissed because no fire reports showed accelerants had been used, Dougherty's attorneys argued. At the time Sussman went to police, she was engaged in a custody battle with Dougherty over their son Stephen, court documents say.

      Prosecutors supported their case with the statements of two jail house informants who said Dougherty confessed to them in his cell. But Dougherty's attorneys say the jail house informants are unreliable. They point to studies that show in-custody informant testimony is a leading cause of wrongful conviction in capital cases.

      Dougherty's first wife and the mother of the deceased children, Kathy Fox, is now remarried. She said she doesn't believe he intentionally killed their children. She never testified in the original trial because Dougherty's attorney didn't ask her.

      "Knowing Daniel and his relationship with his children, I cannot believe he would have burned them to death," she said in statement presented in Dougherty's appeal.

      So how do lawyers prove a man's innocence more than two decades after a fire occurred?

      The task is almost impossible, said David L. Faigman, a law professor at the University of California, San Francisco. Disproving an arson case is more challenging because the findings aren't as clear-cut as DNA, he said. He said the petitioners have the burden to prove the arson didn't occur and that they weren't involved.

      "Courts are already reluctant to open old cases without something like DNA that is really demonstrative proof of someone's innocence," Faigman said.

      Cameron Todd Willingham's family in Texas is on a quest to prove he is innocent. While the Texas state board's preliminary findings admitted to flawed science, they also found the investigators did not commit negligence. Still, his family is hoping the board's final findings, expected to be released in October, will exonerate him.

      "It will help us with public opinion," said David Fryman, Dougherty's attorney at Ballard Spahr, about the Texas state board's initial announcements. "I think it can serve as a persuasive influence that this is the real issue. It's a scientific issue, and we don't want to have another Willingham."

      Dougherty's fate rests in the Pennsylvania Supreme Court, which could take years to make a decision. If the Pennsylvania Supreme Court denies his post- conviction relief, his attorneys say they will have to go to federal court.

      Meanwhile, Daniel Dougherty marks his time on death row in Pennsylvania. He's in solitary confinement. At 4 a.m., he is awake and listening to the radio through his headphones. By 5 a.m., he says a prayer and starts his routine of medicines for a number of ailments, including stomach problems. He's worried about whether his body will hold out long enough to prove his innocence.

      His food comes through a locked slot on his cell door. He plays dominoes most days. TV helps him get through. On Mondays, Wednesday and Fridays, he exercises.

      He occasionally receives letters from his common-law wife, Kathy Halin, and his family. They are too poor to visit him on the opposite end of the state.

      Johnny and Danny, his sons who died in the fire, remain a topic of conversation that evokes "severe hurt," he said.

      "I LOVED (and still do) my sons more than life itself," he wrote.

      He added in his letter that time may heal wounds, but nothing can heal this one.

      Experts Question Dozens of Arson Convictions

      Aug. 20, 2008


      By the time firefighters put out the flames that had engulfed Daniel Dougherty's brick row house, it was too late.

      Neighbors said Dougherty, who said he'd fallen asleep on the couch, ran out of the house and tried to put out the fire with a neighbor's hose. A police officer later said that Dougherty, standing shirtless outside his North Philadelphia house in the near dawn Aug. 24, 1985, said, "My name is mud. I should die for what I did."

      By then, fire and smoke had moved into the upstairs bedroom and killed Dougherty's two sons, John, 3, and Danny, 4.

      Sifting through the wreckage and examining the burn patterns left by the flames, John Quinn, an assistant fire marshal, concluded the fire was a case of arson.

      At Dougherty's trial, Quinn said the fire started nearly simultaneously in three separate places -- on the sofa and love seat and beneath the dining room table. The multiple points of origin, he said, were a sure sign the fire was intentional.

      No one questioned his conclusion. It took a few hours for a jury to convict Dougherty of murdering his two sons and he was sentenced to death.

      But several leading arson experts now say there was no scientific evidence of arson that night. Quinn, these experts say, relied on long-held but now discredited beliefs about how fires behave and the marks they leave behind.

      "He was so far off base it's unbelievable that no one challenged his expertise or methodology," said John Lentini, a nationally known fire investigator who is a defense expert in Dougherty's motion to vacate his conviction. "Anyone paying attention for the last 20 years would have known that what he was saying was totally off the wall."

      Those outdated techniques once commonly used by fire investigators, Lentini and others warn, may have landed dozens of innocent people in prison for fires they did not start. Dougherty's case is one of what is expected to be a string of legal challenges to arson cases from the 1970s, '80s and early '90s.

      "I didn't set any fire. I'm an innocent man on death row and I have a child out there who needs my help," Dougherty said in a recent telephone interview from Pennsylvania's death row.

      A Philadelphia judge is now considering Dougherty's motion to vacate his conviction and is expected to rule in early October. The District Attorney's Office declined to comment, but in court papers it argued that Quinn's opinion was valid and that there was ample evidence that Dougherty intentionally had killed his children. Quinn, now retired, declined to comment.

      "Those opinions [of Dougherty's experts] are nothing more than Monday morning quarterbacking and would not have affected the outcome of defendant's trial," prosecutors wrote.

      No DNA-Type Test in Arson Cases

      Though it's unclear how many convictions may have been based on what these experts say is outdated science, experts consulted by ABCNews.com put the number at anywhere from a few dozen to a few hundred. Researchers are only now beginning an effort to catalogue a comprehensive list of questionable cases.

      "I'd have to say 10 [percent] to 20 percent of the cases decided in the 1980s and early 1990s were probably wrong, or could have been wrong," said John DeHaan, a former arson investigator with the California Department of Justice.

      Page 2 of 3

      Aug. 20, 2008

      Arson convictions are more difficult to overturn than cases where clear-cut DNA evidence points to a defendant's innocence. While it's likely that bad arson science was used in many cases, it's unclear how often that testimony made the difference in sending someone to prison, said James Doyle, director of the Center for Modern Forensic Practice at John Jay College of Criminal Justice.

      "You're not going to have the comfort of an authoritative DNA test to tell you you're right or wrong," said Doyle, who is leading the first comprehensive study of old arson cases.

      Despite retraining efforts and widely publicized cases like Dougherty's, some fire investigators continue to use and defend outdated techniques, Doyle and others say.

      In training exercises for veteran fire investigators conducted by the federal government, fewer than a quarter of investigators generally were able to identify the cause of test fires, said Steve Carman, who recently retired as a senior special agent at the Bureau of Alcohol, Tobacco, Firearms and Explosives.

      In one 2005 training, Carman found that less than 6 percent were able to identify the section of a room in which a test fire started.

      "We're still finding that in some cases, depending on how the fire burns, some people still don't understand the things they're seeing," he said.

      Advocates fear that outdated investigative techniques may have led to the execution of an innocent man. Last week the Texas Forensic Science Commission, created to look into allegations of forensic misconduct, announced that it would review the case of Cameron Todd Willingham, who was executed in 2004 for setting a fire that killed his three children.

      A 2006 study sponsored by the Innocence Project concluded that the 1991 fire was not intentionally set. According to the study, the fire investigator's trial testimony was based on false premises.

      Evidence in Arson Convictions Questioned

      Until the early 1990s, many fire investigators based their conclusions on what DeHaan calls the "cookbook approach" -- a series of telltale signs that they were taught pointed to arson, but were not subjected to rigorous scientific analysis.

      Investigators were taught, for example, that finely cracked glass is caused by unusually hot fire, that fires always burn up, that fires caused by accelerants such as gasoline burn hotter than normal fires and that cracked concrete is a sign of an accelerant. All of those theories proved to be wrong.

      "Fire investigation traditionally was more of an art than a science. You learned the art and some experience from people who came before you," said Alfred Pisani, an arson expert hired by Dougherty's lawyers. "If you saw a pool-shaped burn pattern on the floor, that meant gasoline might have been used. Now we know it's not true."

      One major change came with the recognition of a phenomenon known as flashover. When a fire burns inside a room, it sends smoke and energy toward the ceiling, making the room hotter. When the room reaches a certain temperature, everything combustible in it ignites nearly simultaneously.

      The resulting damage can produce signs that were once thought to be indicators of arson, such as burn patterns on the floor that appear to be multiple starting points for a fire. Flashover can occur in a matter of minutes, challenging old beliefs that only fires set with accelerants can burn that fast.

      Page 3 of 3

      Aug. 20, 2008

      In Dougherty's case, Lentini and Pisani say the fire damage that Quinn identified as separate points of origin was caused by flashover. They say that the origin of the fire cannot be determined, but that there is no reason to conclude that it was an arson.

      Quinn concluded that the fire started in three places nearly at the same time.

      Nevertheless, Dougherty was not arrested until 14 years after the fatal fire, when his second ex-wife, who was involved in a bitter custody dispute with him, told police that he had confessed to starting the fire. Dougherty's lawyers and family say the ex-wife, who has since died, later admitted that she made up his confession.

      Two jailhouse informants also testified that Dougherty had admitted that he intentionally started the fire to get back at his girlfriend, who had threatened to leave him, and at his first ex-wife, who he said was cheating on him and using drugs.

      On the night of the fire, Dougherty, who had a drinking problem, was supposed to be at Alcoholics Anonymous. Instead, his girlfriend found him at a bar and told him she was leaving him. She left Dougherty's two boys at home with a babysitter. When it got late, the babysitter left, according to court documents.

      Eight Years on Death Row in Arson Case

      Dougherty's first ex-wife, the mother of Danny and John, called him a "nasty drunk" and said he beat her up, but that he never touched his kids.

      "It was a freak accident in my eyes," Kathy Dipple said of the fire. "We had our ups and downs but he never hurt his kids."

      Dougherty said he got home late that night and went to sleep on the downstairs couch. He said he awoke a few minutes later and saw the curtains on fire. He claimed he ran out of the house, tried to put out the flames with a hose and tried several times to run back into the house.

      A police officer said that Dougherty said, "My name is mud, I should die for what I did," though Dougherty, in an interview, denied it.

      In court papers, prosecutors argue that Quinn's investigation was scientifically up to date in 1985. They also argue that Lentini and Pisani conclude that the cause of the fire was undetermined, not that the fire could not have been arson, and that their testimony would not have changed the outcome of the trial.

      "While the science of fire investigation may have evolved since 1985 and created new terminology by 2000 -- 15 years after Lt. Quinn's investigation of the fire at 929 ½ Carver St. -- the behavior of fire has not changed one iota since its discovery," they wrote.

      "The fact that defendant's hired experts assign a new 'scientific' name to the phenomenon of fire behavior does not mean that Lt. Quinn's failure to use that name in any way minimizes the import of his accurate observations and descriptions of the fire defendant set," prosecutors wrote.

      Dougherty, who has been on death row for eight years, has reconnected with his son from his second wife, who has since died. His son did not return a message from ABC News.

      "I was railroaded and here I am on death row while my son is out there parentless," Dougherty said. "Everything that I had is gone."