The United States District Court
For the Eastern District of Pennsylvania

civil action 09-902 memorandum

In October 2000, Dougherty was sentenced to die for setting fire to his girlfriend's home in 1985. His two sons, 3-year-old John and 4-year-old Daniel, died in the blaze.

Almost 15 years later, on April 14, 1999, police arrested Dougherty for a charge of arson and two murder charges.

In a statement to police, Dougherty said he was out at a bar with a friend  but was supposed to have attended an Alcoholics Anonymous meeting that night. When his girlfriend tracked him down and showed up at the bar around 11:30 pm, she angrily told him to go home to watch his own kids, whose mother was Dougherty's estranged wife.

Dougherty's girlfriend went home and packed her clothes and left Dougherty's boys with a teenage babysitter. At 1:30 am, the babysitter got tired of waiting for Dougherty to arrive and left the boys sleeping and returned to her own home next door.

After leaving the bar, Dougherty went to the home of his estranged wife.  Dougherty told her that his girlfriend wanted him to leave her house and he persuaded his wife to accompany him to the house so she could take the children. 

When they arrived, Dougherty found a note in which his girlfriend said she was ending their relationship and taking her son. "Don't bother trying to find me," she said. He showed the note to his wife and pleaded with her to stay with him. 

She refused and asked him to bring the children downstairs.  He urged her to go upstairs and she refused because she was afraid that Dougherty would try to "come on" to her.  Finally, she became tired of Dougherty's sexual advances and left the house, promising to return in the morning for her scheduled visitation with the children.

Around 4 a.m. the fire department was called to the home and found the rowhome fully engulfed in flames. Police found Dougherty on the front patio, wearing only a pair of jeans.  When they asked him his name, he replied, "My name is mud. I should die for what I did."

In an upstairs rear bedroom, police found the lifeless bodies of Dougherty's sons, 4-year-old Daniel and 3-year-old John. The boys died from smoke inhalation and carbon monoxide poisoning and may have been burned by the fire while they were still alive.

The fire was determined to have been deliberately set when investigators found three separate points of origin; a loveseat, a couch and the dining room table. Even though Dougherty's comment appeared to be a confession, charges were not filed.

In a police interview about an hour after the fires, Dougherty told the detective that he was asleep for 15 minutes before awakening when he heard flames and saw the curtains on the front window on fire.

Dougherty conceded that he had not called the fire department but instead immediately ran out of the house. He told the detective he then unsuccessfully tried to put out the fire with a neighbor's garden hose, then tried to climb a ladder to get to his children. The flames, he said, prevented him from reaching his kids.

At trial, Dougherty's version of these events changed and he said he re-entered the burning house twice, once making it back into the living room, which he said was engulfed in flames by this time, and then later, entering the burning dining room through another door. 

An arson investigator testified at trial that Dougherty's claim to have been on the sofa when he noticed that the curtains were ablaze was not credible because, based upon the ignition points and the fire patterns, the sofa would have been fully consumed in flames before the curtains caught on fire. 

He also said that a person who was on the sofa at the time the curtains initially ignited would have been severely burned or killed. The investigator said that the person who started the fire would have been the only person likely to have time to escape without injury. 

Dougherty did not suffer any burns nor show any signs of exposure to smoke or fire. When asked by police how the fire started, Dougherty speculated that it was caused by a faulty electrical outlet. A stereo and fan were plugged into the outlet, near the front window. Dougherty denied setting the blaze.

On cross-examination, Dougherty's lawyer asked the detective to describe his client's demeanor during the interview. The response was one the defense apparently did not expect; "He wasn't as upset as someone who lost their child would be."

At trial, prosecutors presented two jailhouse informants who testified that Dougherty tearfully told them he committed the crime to get revenge on his estranged wife. A woman who was married to Dougherty after the murders told police that, several times during the course of their marriage, Dougherty had confessed to her that he had started the fire that killed his two sons.

The jury found Dougherty guilty after less than three hours of deliberation and he was formally sentenced to two death sentences on Oct. 6, 2000 after the jury deliberated for only four hours. Prosecutors said that Kathy Dipple, the mother of the dead boys, agreed with the verdict and sentence.

The Pennsylvania Supreme Court affirmed Dougherty's death sentences in an opinion dated Oct. 20, 2004. The Court denied reargument on Dec. 9, 2004. On May 7, 2005, Dougherty filed a petition for a writ of certiorari in the United States Supreme Court. Certiorari was denied on Oct. 3, 2005. Dougherty, 45, is an inmate of the State Correctional Institution at Greene.

Experts Question Dozens of Arson Convictions

Daniel Dougherty Was Convicted of Setting a Fire That Killed His Kids; Some Experts Say There's No Evidence of Arson

By Scott Michels - Abcnews.go.com

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.

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.

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."

Daniel J. Dougherty EK-7623