by Denise McWilliams, Esq., Executive Director
1. Dog Daze
Even in the elite world of detection dogs, Billy was special. Her handler, Sergeant Douglas Lynch of the Massachusetts State Police, characterized her singularity:
Her uniqueness, there was a lot of uniqueness to her alert, it was beyond the odor, sit, food. There were certain things that over the period of time that I handled this dog, I read her face. I was with her 365 days a year. It was the first thing I did every morning, it was the last thing I did every night for the entire time that I had that dog. I knew her personality; I knew the ways her eyes shifted. I knew the ways her ears shifted when she located stuff. There were things she did. Her ears would cock to the sider, her ears, I don’t know if anyone owns a Labrador. Their ears are kind of expressive. Her ears would go up in the corners, her head would tilt to the side and her tail would start to got [sic]. There were very distinctive things that she did at the fire scenes that I didn’t see at other places with her. It was an excitement in the dog that she had located what she was looking for. (Trial Transcript, III, 150-151)
According to Sergeant Lynch, Billy found what she was looking for in a convenience store owned by James Hebshie in Taunton, Massachusetts. Along with several other businesses, the store burned pretty much to the ground on April 21, 2001.
Sergeant David Domingos of the Massachusetts State Police Fire Marshal’s Investigative Unit was in charge of the investigation. Domingos concluded that the fire began in Hebshie’s store; ignited along the left hand wall, moved several feet to a pipe in the wall and finally through a pipe up to the second floor. The destruction was significant. Domingos called in Lynch so that Billy could confirm Domingos’s conclusion.
Lynch brought Billy to the only safe place in the store: the left-hand sidewall and the floor immediately in front of it. There was one spot on the carpet along the wall where Billy alerted. Lynch took a single sample from the carpet for laboratory analysis. A staff member from the police laboratory testified at trial that the sample was a light petroleum distillate.
Lynch’s deep attachment to Billy (who died before the trial) was evident. According to Lynch, Billy’s prowess bordered on mystical. He testified that Billy was 97% accurate, and whatever mistakes she made were the handler’s fault rather than her own. Lynch knew that Billy had located something by the way her ears or eyes shifted. He testified, “I’d go into a room, I’d almost know immediately if the room was hot by listening to her nose…Even if I couldn’t visibly see her until my eyes adjusted, I audibly heard the deep nose working and the blow-out. I didn’t have to see her to know she had found something.”
The prosecution needed a bit of context before resting its case. Motive? Hebshie was trying to sell the store, supposedly because of financial difficulties. Hebshie lost his license to sell lottery tickets after he failed to pay fees owed the Commonwealth. When a scheduled sale was delayed because of a death in the purchaser’s family, Hebshie decided to collect on his $30,000 insurance policy. Opportunity? The fire started seven minutes after Hebshie set the security alarm and left the store. Standing on its own, it was not enough for a conviction. But by the time Sergeant Lynch finished extolling Billy’s virtues and emphasizing that she alerted to only one place on the carpet, Hebshie was a convicted man.
The only problem was that Hebshie was innocent.
But what about the dog? How could this spiritual descendant of RinTinTin and Lassie be wrong? With apologies to Shakespeare, the fault lies not in the dog, dear reader, but in ourselves.
2. Behind the Smoke and Mirrors
Scent travels. It pools, it seeps, it wafts, it eddies. Streams of water or gusts of air can push it along. It can travel on clothes or other fabrics. The location of scent is the point on its travel, not necessarily the beginning or the end. A dog can locate the scent, but cannot describe how it arrived there. That’s the human’s job.
Dogs like Billy do not alert to a single substance; they are trained to alert to a class of chemicals: petroleum distillates. Many petroleum distillates – such as lighter fluid, glue, and even materials used in newsprint – are found in variety stores. They result from the decomposition of materials damaged by fire, such as carpeting and building materials.
Hebshie’s store was a disaster by the time Billy got there. Only one of the four walls, the left-hand one, was still standing; the other three had collapsed. The surviving wall was covered with quarter-inch plywood that had only partially burned. The remainder of the store was buried in debris-collapsed walls, ceiling panels, and inventory, all of which had been blasted by the fire and the hoses used to extinguish the blaze.
The damage was so severe that Sergeant Lynch, concerned for Billy’s safety, would only bring her to the area directly in front of the left-hand wall, the area that Sergeant Domingos had already concluded was the origin of the fire. It was there that Billy alerted and there that Sergeant Lynch cut a single sample from the carpeting. An analyst from the State Police Laboratory classified the sample as a light petroleum distillate.
The National Fire Protection Association (NFPA), the largest association of its kind in the world, promulgated NFPA 921, which has become the standard for arson investigations: NFPA recognizes the limitations of a handler’s ability to interpret a dog’s alert and restricts the use of canine/handler teams to “[a]ssist with the selection of samples that have a higher probability of laboratory confirmation than samples selected without the canine’s assistance.” In other words, recognizing that a dog can tell where but not why or how a fire began, canine/handler teams are used to find samples for laboratory analysis. Multiple samples from different sites are collected to determine whether a substance is restricted to one or two sites or found throughout the premises.
Hebshie’s attorney did not ask why the left-hand wall was the least damaged if it was the place of origin. He did not ask if Billy would alert to chemicals that had innocent uses other than to start fires. He did not ask if some of those chemicals would be found in a variety store. Nor did he object to what the trial judge described as “a [t]ruly extravagant testimony about Billy the dog.” In her later order vacating Hebshie’s conviction, Judge Gertner wrote that “there was not a complete failure of defense (although candidly, counsel’s performance came close).”
Fortunately for Hebshie, his post-conviction attorney, Jeanne Kempthorne, successfully pursued his case and convinced Judge Gertner that Hebshie’s conviction was a miscarriage of justice.
Sadly for Hebshie, it was four years before Kempthorne’s Motion was heard by Judge Gertner. Hebshie spent those four years in federal custody. Because of his poor health, Hebshie served his time at the Federal Medical Center at Devens, a better facility than many federal prisons. Still, it was a difficult time. “The prison was like a concentration camp,” Hebshie said after his release, “That’s the honest to God truth. If you want me to say something good about it, I can’t.”
Since Hebshie’s case, there have been more studies exposing the problems with the use of “accelerant detection” dogs. Even so, police departments across the country still cling to traditional, scientifically discredited practices. But the situation has improved, and those who are investigated by knowledgeable police departments or represented by competent counsel should be fine.
As for the rest, there is always the chance that they will be exonerated some years down the line. Perhaps not the most satisfying ending, and certainly not the most just. Just ask Hebshie.