The Burning Bed- Has an Innocent Man Been Locked up for 35 Years for an Arson that Never Happened?

In 1978, a 36-year old businessman who owned his own used car lot, and who had no meaningful prior record, was accused of setting fire to his house on purpose with his teenage son inside of it. His son died a few days later from burns sustained in the fire. From the very beginning, James E. Hugney, Sr. has maintained his innocence. He told the investigators in 1978 that he had nothing to do with it. He declared it at trial in 1979. In July 1979, he declared again at the time of his sentencing of Life Without the Possibility of Parole (LWOP). He pursued an appeal where he asserted legal error and factual innocence. He said so again during his post-conviction proceedings in 1984-1985. He most recently did so proudly in 2013 as an old man in a wheelchair in deteriorating health before the Honorable Scott A. Evans seeking to have the science reviewed in his case.

Did a 1978 Dauphin County jury wrongly convict James E. Hugney, Sr of felony murder involving an arson that was not an arson and based on bad science?

This is the essential issue that is now squarely before the Honorable Scott A. Evans of the Dauphin County Court of Common Pleas. This case presents a rather unique question of how do we, in 2014, judge the forensic science in a case from 1978. There has been a remarkable change in fire and fire debris investigation since 1978. Empirical testing and the development of standards of investigation have championed a new age in what had been a science that had little empirical support.

Read our prior blog posts on fire science and arson:

• Fire Whisperers-the Story of Bad Arson Investigation
• NFPA Releases NFPA 921:2011 and Rejects Negative Corpus
• Discover Magazine features the dangerous side of arson investigation
• Arson Investigation exonerations
• Guest Blog Post From Dr. Frederic Whitehurst PhD JD: Forensic Science “Matches”-The Case of Black Powder
• Kudos to Texas State Fire Marshal Chris Connealy
• 60 minutes and Arizona’s Pioneer Hotel Fire

The key issue is:

When several aspects that formed the critical underpinning of the conviction have now been soundly rejected by modern fire science principles, is there injustice if the conviction stands?

In 2014, all parties agree that this event involves a tragedy: a teenage boy named James Hugney, Jr. died. The question that is before the court now is whether or not there were two tragedies that stem from the fire? The death of James Hugney, Jr. and the wrongful conviction of James Hugney, Sr.

[In the interest of full disclosure, Justin J. McShane and all of the attorneys and staff at The McShane Firm, LLC have been working on this case for years. Our aim is to get this case fully reopened and allow only for a new trial. Procedurally, after a contested hearing, the Honorable Scott A. Evans found that the Court had jurisdiction to hear this case. Pennsylvania has one of the strictest post-sentencing laws in the nation. A petitioner has only one year from the date that the conviction becomes final to have the court review ineffective assistance of counsel. There is a very narrow, limited and hard to prove exception called the “newly discovered evidence” exception where the Petitioner has to claim and prove that the “new evidence” did not exist at the time of the trial and the petitioner establishes that he or she filed the claim within 60-days. The Court found that the change in NFPA 921 and the abandonment of the negative corpus method of investigation method met this strict 60-day claim.]

First some history of the case is in order:

At the time of the trial, as shown in the trial court opinions and the appellate court opinions below, the case was sensational. It was front page news for many days. It was scandalous. As we will read, the forensic science was not as well developed then as it is now. The use of the now abandoned “negative corpus” model that used to allow for a lack of ignition source and first fuel was the foundation of the arson call at the time. Other junk arson science that has since been debunked permeated and fueled this trial. Now debunked claims that only thermal burning of an incendiary nature can cause the burns seen on the victim was used in a negative corpus fashion to convict Hugney.

This history and this vitriol that you are about to read is important so we can understand the context of the times.

The facts as seen by the trial judge in 1978: (Read the full trial court opinion)

We have Dante’s notion of Hell in his Inferno; Homers in the Odyssey, Virgil’s in the Aeneid & Milton’s in Paradise Lost. Had 16 year’ old Jimmy Hugney lived to compose his, it would undoubtedly be his awaking in a bed chamber in the early morning hours to find himself a flamming torch. While he managed to burst from the fire engulfed structure, he collapsed on a neighbor’s lawn with third degree burns over 98 percent of his body; mercifully expiring a few days later. It was established beyond preadventure that the spark which ignited the fire was deliberately set. The fiend found responsible for this stygian crime was the boy’s father, James Edwin Hugney, Sr. The jury convicted him of Arson and Murder. He seeks to quence these verdicts by attacking the sufficience of the evidence and the admission of a hearsay declaration. The evidence was as abundant as was the accelerant involved. Fire and police officials quickly arrived at the scene of the burning house. When they were able to enter the gutted ruins, burn marks were easily discernable indicating various flow patterns from the area around the boy’s bed out into the adjacent living and dining area. The Commonwealth presented several experts, none of whose testimony was contradicted, who said that the fire was of incendiary origin aided by the liberal use of an accelerant such as gasoline.

…
The defendant’s own testimony placed him at the scene of the fire virtually at the time of its inception (the Fire Marshall, qualified an expert, placed the inception of the fire at approximately 6:00 a.m.) On the day of the fire Hugney said that he had last been to his residence at 10:00 p.m. the previous night. Later he changed that to 2:30 a.m. and again some ten days later in a statement to the police said that he had been by the residence shortly before 6:00 a.m. There was testimony at the trial that his girlfriend on two prior occasions had indicated that the defendant had told her that he had entered the premises, although in court she insisted that he had simply told her that he had driven by.

The posture assumed by the defense conceded that the fire was of incendiary origin, the thrust becoming a matter of assigning responsibility. In this
regard, the defense called a number of prior acquaintances of the victim, Jimmy Hugney, for the purpose of eliciting the victim’s propensity for dangerous acts, including playing with fire and an incident involving an explosive device. In closing agrument [sic] to the jury, counsel urged the jury to conclude that the victim
had himself initiated the. calamity which took his life.

The Commonwealth, on the other hand, presented expert testimony that the victim’s burns were inconsistent with such a theory. Furthermore, statements made by the boy, just after he had escaped from the inferno, were at complete variance with the defendant’s position. As he laid in the grass, where he had collapsed nude and baldly charred, his first words to a neighbor, who arrived immediately on t he scene, we re of concern fo r his baby brother who he thought was also in the bedroom. A few minutes later he stated, “I was sleeping, there was something wrong, that fire was too fast , maybe it was electrical.” Shortly thereafter, he indicated that he was awaken by what he thought was a fire bomb. Again after expressing concern for his brother, who he believed to still be in the house, he said he had “heard a loud bang which woke him up, and when he woke up everything was on fire.”

To carry coals to Newcastle the prosecution presented testimony of one Harry Witman, who was a fellow inmate of the defendant’s at the Dauphin County Prison, who testified that while in jail the defendant told him that he had set that house on fire, relating how he had spread an inflammable substance in various rooms.

….
Hugney stands justly condemned for his son’s immolation. Unfortunately society had progressed to the state where the only permissible punishment is confinement.

J.

The facts as determined by the Superior Court in 1980: (Read the full Superior Court Opinion here)

The facts as adduced at trial are as follows. In the early morning hours of August 20, 1978, at approximately 6:15 a. m., a fire broke out at appellant’s residence at 1625 Bamburger Road, Susquehanna Township. Firemen were notified by a neighbor, Bernice Shutt, who was awakened by the fire. Ms. Shutt ran outside where the victim, Jimmy Hugney, appellant’s sixteen-year-old son, had collapsed with 98% of his body covered with third-degree burns. The victim told Ms. Shutt, “I was sleeping, there is something wrong, that fire was too fast, maybe it was electrical.”

The first official on the scene, Township Fire Marshall John Brindle, Sr., was directed to the victim by Ms. Shutt. The victim told Brindle that he had been awakened by what he thought was a fire bomb and had immediately run out of the house. When Detective Paul Kinsinger of the Susquehanna Township police arrived shortly thereafter, the victim told him he heard a loud bang and upon waking up, everything was on fire. The victim was removed by ambulance to a local hospital and subsequently was transferred to the Burn Center of St. Agnes Medical Center in Philadelphia, where he died five days later.

Four experts testified at trial, all opining that the fire was of incendiary origin. William Sweet, a qualified expert, testified that he noticed “flow patterns” in the victim’s bedroom and in adjacent rooms; these patterns led to Sweet’s conclusion that a flammable substance had been poured on the floors and set ablaze.

…Ms. Bonacci further testified that on the night of the fire, she had intermittently been with appellant. She told how shortly before 6:00 a.m. appellant drove off by himself, returning some time later. Ms. Bonacci testified that appellant had told her that he had driven to the Bamburger Road residence. She was then asked: “Did he indicate that he had gone inside the house?” Ms. Bonacci replied “No.” The Commonwealth then pleaded surprise and asked that Ms. Bonacci be declared a hostile witness. After a sidebar conference, the Commonwealth was allowed to establish that in a statement given to police shortly after appellant’s arrest and at appellant’s preliminary hearing, Ms. Bonacci had indicated that appellant told her that he had, in fact, gone inside the house.

…

Finally, Harry Whitman, Jr., the son of Mrs. Hugney’s boyfriend, testified that he had been incarcerated in the Dauphin County Prison at the same time as appellant. Whitman testified that appellant had told him that he had set fire to the Bamburger Road residence because he was “fed up with everything.”

The facts as seen by the trial judge in 1985 in post-conviction: (Read the full trial court opinion)

James Hugney, Sr. was convicted by a Jury of murder and arson on the basis of overwhelming evidence that he poured gasoline around the bed of his sleeping son, 16- year- old Jimmy Jr., and set his house on fire. The boy awoke in flames and ran from the home with third-degree burns over 98 percent of his naked body; he died five days later.

…

Petitioner’s PCHA attempt to rekindle the flames of his heinous crimes is but a puff of smoke. 2

[2] We feel compelled to repeat the feelings we expressed in our opinion on Hugney Sr. ‘s post-trial motions that it is unfortunate that petitioner’s life, as well as his appeal, cannot be doused. COMMONWEALTH v. HUGNEY, 101 Dauph. 140, 143 (1979).

J.

The facts as discovered through a thorough modern investigation (2011-present)

1. On September 8, 1978, a fire occurred at 1625 Bamberger Road in Harrisburg, PA.

2. Mr. James Hugney, Sr. was the owner/occupant at this address together with his family.

3.When the police and the Fire Marshall arrived at that address, per the sworn testimony, it was described as “a working structure fire” that was “fully engulfed in flames.”

4. When the police arrived at the scene, the then 16-year-old son of James Hugney Sr. was on the ground with over 98% of his body featuring third degree burns.

5. Eventually, Hugney’s then 16-year-old son, named James Hugney Jr., succumbed to his condition.

6. James Hugney Sr. was charged with arson and murder.

7. After a trial, a Jury in Dauphin County convicted James. The trial transcripts can be read here: 1978 trial transcripts

Here is some of the essential and traceable testimony from the actual trial transcripts:

Summary of Trial Testimony

Prosecution Case

Margaret Hugney (Wife)

• Described the house for the jury
• She defined each room on a map and described what furniture was in each room
• Described what she did that day
• She tripped over a gas can on her way out of the house that she believed was empty based on feel and movement

Bernice Shutt – Neighbor (p. 46)

• She calls 911 to report the fire
• House was fully engulfed when she first observed the fire
• Spoke with the victim
  • Stated that baby brother was still in the house
  • Fire was way too fast, possibly electrical

Kevin Malloy – 911 operator (p. 52)

• Call from Shutt came at 0615

John Brindle – fire marshal (p. 54)

• 1^st on scene
• Arrives at 0621-0622
• Entire southern end of house is involved and there has been partial collapse
• House is wood framed with aluminum siding
• If the fire was accidental
  • It would take six to eight hours for it to advance to the state it was in at the time he arrived
• If accelerant was used
  • It would take fifteen minutes to a half an hour for the fire to advance to the state it was in
• Fire was incendiary based on the state of the fire at the time he arrived

Paul Kinsinger – Detective Susquehanna (p. 89)

• Statement by Hugney Jr. after running out of fire
  • Little brother was still in the house
  • He heard a loud bang and everything was on fire
  • It seemed like a fire bomb had been thrown into the house

Richard Fissel – Firefighter (p. 100)

• Second truck on scene
• Observed the gas can in question and saw no other containers with flammable liquids
• Found the dogs in Hugney Jr.’s bedroom
• Living room, bath, and laundry area most severely burned
• Many guns were found

Steven Allen – Firefighter (p. 105)

• First engine on scene
• Condition of fire
  • Southwest corner completely burned and burned itself out
  • Northern part of house was fully engulfed
• Propane tank outside kitchen for use with stoves and such
• Removed tank for safety purposes
  • Tank was heavy indicating there was liquid gas in it
• Found both dogs in bedroom
  • Hair completely burnt off except where there was contact with floor
• Guns found in both master and Hugney Jr. bedroom

James Miller – Chemist PSP (p. 110)

• Gas container
  • Contained gas
  • Approx. a quart and a half
  • Can capable of holding 2.5 gallons
• 2 small cans containing Masonite material
  • 1^st taken from near window in bedroom
    • No evidence of any volatile substance
    • 2^nd taken from front dresser bedroom
      • Test indicated a series of low boiling hydrocarbons
      • Compared to hydrocarbons that are common to accelerants
      • Found to be in the range of gasoline and lighter fluid
• Piece of wood totaling 3-4 feet
  • No volatile substance was found
• It is difficult to find flammable or accelerant substances depending on degree of fire and degree of the burns
• Hydrocarbons found would not be consistent with paint, ether, gunpowder, potassium nitrate, sulfur, or charcoal

James Miller – Chemist PSP (p. 121)

• Called out of order by defense due to another subpoena
• Detective Bonneville brings several items for his review on 9/1/78 to check for explosive residue
• The items were obtained on 7/14/78
• Red plastic funnel
  • Contain sulfur and potassium nitrate
• Two white envelopes
  • Contain sulfur and potassium nitrate
• Eight sections of metal fragments
  • Mixture of materials
    • Sulfur
    • Charcoal
    • Carbon
    • Potassium nitrate
    • These are consistent with gun powder
• These substances show an attempt to mix them for an unknown purpose
• Use of these substances in the fire would leave no residue

William Sweet – fire investigator (p. 126)

• There is a characteristic flammable liquid flow pattern on the floor of the bedroom

• When flammable liquid is poured out it will most times flow out in a finger shaped pattern such as those seen in the photographs
• It will seek out the lowest points in the room and also seep down through holes and cracks allowing a fire to burn up through these
• In the case of a flammable liquid it spreads out and remains very close to the floor
  • In this case there is burning down to the very base of an object, and in this case there is severe charring at the very base of the dresser
• There is slight burring within the cracks of the floor where the flow pattern is, indicating the flammable liquid seeped into these cracks and the fire burned up through them
• The charring has a shininess to it which is indicative of charring that had help of an accelerant
• Living room
  • Charring right side of the door
  • Some charring of the floor and breakup of the underlayment
  • Have burning down through as a result of a flammable liquid seeping down through holes and burning back up
  • There is characteristic flow patter on the linoleum floor leading to the patio door
  • Doorway leading to the dining room find characteristic burn out in the area of the doorway
    • This happens because the floor and sub floor do not sit tight and allows the flammable liquid to seep down into the spaces
• Dining Room
  • Same particular type burn out in the area of a heat register
  • Also found on opening here whereby liquid could seep down through which indicates that a flammable liquid was present
  • There is a characteristic flow pattern on the linoleum floor
• Remains of aluminum patio door
  • The remains of the door show it is melted indicating a temperature of at least 1200 degrees at floor level
  • This is excessive temperature down at floor level for a normal fire
• Evidence indicates that there are 4 distinctive flow patterns
• The fire is of incendiary origin started through the use of an accelerant
• There are multiple points of origin
  • Boys bedroom
  • Dining room
  • Living room
  • As to where ignition took place was unable to actually determine
• To cause this kind of flow pattern and type of fire would take less than 5 gallons of gasoline, not sure exactly how much less

Trooper Boyle – PSP Fire Marshal Division (p. 153)

• Fire was of incendiary origin
• Observed the aluminum door
  • It indicated extreme heat in a low point
  • Ordinarily there is 3 times as much heat on the ceiling as on the floor, in this fire indications point to high temperatures on the floor

Richard Guckelberger – PSP Fire Marshal Unit (p. 157)

• Fire is of incendiary origin having been intentionally started

Dr. Declement – Director of Burn Center (p. 160)

• 98 percent 3^rd degree burns over body
•  Three areas of non-burning
  • Area of right index finger
  • Pubic area
  • Soles of the feet
• Also had amputation of left hand and forearm
• Had edema indicating an inhalation injury
• On August 20 thought the patient would not survive
• This patient died from thermal injuries
• 2 hypothetical circumstances
  • Scenario 1: Patient was asleep clothed with underwear and shorts. A flammable substance poured in the room and ignited. THE person is awakened by explosion runs from bedroom through living and dining room until finally exiting the house.
  • Scenario 2: The person himself is pouring a flammable substance on the floor in front of him or around him. It explodes in his face while conscious.
  • Which is more likely based on the injuries observed?
    • The first set of circumstances
      • In the second set of circumstances we would not usually find burning on the back side of the individual as we did here

Halebert Fillinger – forensic pathologist (p. 172)

• Cause of death is thermal burns
• Burns that are produced by an increase in temperature

Roger Hoon – friend of victim (p. 181)

• Meet Hugney at 430 on the 19^th and went to the raceway
• Hugney was not in the best of spirits
• Something must have been bothering him with respect to his hand or personal problems
• After races dropped Hugney off about 110 the morning of the 20^th

Harry Whitman Sr. – wife’s boyfriend (p. 188)

• Saw his wife at 400 afternoon of the 19^th
• Went to Blvd. café for food
• Picked up her other son Scott at 7
• Went to Cutter’s Café for some more food
• He was dropped off at 830
• Next spoke with wife at 1045 by phone
• Meet her at Al’s and Jean’s Café about 1115
• Went to the Harrisburg Moose Club about 110
• Stayed till 3
• Went to a new house that he just acquired with the three of them for the rest of the night
• Learned of fire the next morning

Patricia Bonacci – his mistress (p. 195)

• Had 2 children with Hugney
• She was with Hugney from 11 until around 3
• Then she picked him up a little after 5 on the 20^th
• Arrived home about ten after 5
• Hugney left
• The next time she sees him is 6 when he knocks on her bedroom window
• When he gets back to the house he tells her he went to his house and saw no one was home after seeing no cars and checking inside
• When he arrived back at the home at 6, he did not appear nervous or upset and did not smell of gas

Joseph Parise – bartender (p. 228)

• Hugney arrived at the bar between 11-130
• Left at 450-455 the morning of the 20^th
• He was drinking but still believed he could operate a car safely

Catherine Storm – Pat’s Roommate (p. 232)

• Received a call from Hugney at 430
• Hugney said that he needed a ride home gave phone to Pat
• She left to pick him up 450-455
• She goes to sleep is woken up the next morning

Margaret Hugney – wife (p. 239)

• Relationship between victim and Hugney, Jr. was hostile
• June 30 1978
  • Hugney comes to get personal effects
  • There was a fist fight between Hugney, Jr. and Hugney, Sr.
  • Hugney, Jr. calls the police
• July 14 1978
  • Son blows his arm off with a homemade explosive device
  •  No fire at the time of the explosion just some damage to the sliding glass door
  • Week prior son had burned his hand doing something in a previous incident that required medical attention
• August 14 1978
  • Hugney was drinking
  • Wife and Hugney in an argument
  • Son and Hugney get into a fight
  • Hugney punches son in the mouth
  • Wife calls the police
  • Hugney comes back later that evening
  • He is drunk
  • All three in a fight
  • Hugney beats his son with a board that had a nail in it causing puncture wounds
  • Lots of destruction to the house and the furniture
• Hugney alone had fire insurance on the house
• Business was not doing well
• $10,000 in debt
• Taxes on the house were not paid

Robert Farina – Prothonotary dauphin county (p. 264)

• Several judgments against Hugney for indebtedness

Charles Fisher – Deputy Sheriff Dauphin County (p. 268)

• 8/18 hung on the door of the house a notice of failure to pay taxes and if such taxes are not taken care of there will be a sheriff’s sale

George Van Wagner – insurance agent (p. 271)

• Has professional relationship with Hugney
• Has provided fire insurance since 1974
• Premiums were current and would receive $30,000 in event of fire destruction

Harry Whitman Jr. – jailhouse snitch and son of wife’s boyfriend (p. 277)

• Meet Hugney in jail in September 1978
• Hugney said he had set the house on fire
• At the time he set the fire he didn’t care if his son was in the house
• Said he spread some flammable substance in a few rooms
• Reasons for setting fire was he was fed up with his job, business, wife, just everything in general
• Business was going down the drain

Richard Bonneville – Detective Susquehanna police

• Hugney made three different statements about his whereabouts the evening of the fire
• Timed the route from girlfriend’s place to Hugney house and it would take 6 to 7 minutes to complete

Defense Case

Edgar Maloney – employee of Hugney (p. 311)

• Son is a fire bug
• Son used to take starter fluid, spray it, and light the spay with a lighter
• This would shoot a flame out about two feet
• Saw the son do it a half dozen times or more
• Talked to the son about it, but he kept doing it any way
• The son would also play with matches. He would throw them a people also played with firecrackers

Steve Myers – worked part time for Hugney (p. 319)

• The son would take ether, spray it on a firecracker, and then light it
• The son would throw the firecrackers at people
• Sometimes, the son would keep them in his hand till they went off

Lionel Harris – son’s friend (p. 322)

• He and the son would throw smoke bombs at each other using a sling shot
• The son would take a lighter put some butane in his mouth and then spit it out lighting the butane with a lighter

Paul Wilson – friend of Hugney (p. 328)

• The son would take a lighter, put some butane in his mouth, and then spit it out lighting the butane with a lighter

Harry Whitman Sr. – wife’s boyfriend (p. 331)

• Came back to house after the evening with Mrs. Hugney
• Noticed that a lamp had been knocked over that was not knocked over before

Stanley Gochenour – private detective (p. 334)

• Took timed runs of routes described in this case
• Total route time going from mistress apartment to house to Whitman apartment back to mistress apartment was 526 – 606

James Hugney – defendant (p. 348)

• Was picked up at the bar by Patti about  5
• Got into an argument
• She would not take him back to his house
• She went to her apartment then he took the car himself to his house
• Went to his house
• His wife’s car was not there
• He doesn’t go into the house
• He goes to Whitman’s apartment
• He doesn’t see her car there either
• He circles to several parking lots and still does not find her car
• He parks
• He goes to the apartment door and knocks on the door
• He thinks he hears something so he kicks open the door
• No one was in the apartment so he leaves quickly and goes back to his girlfriend’s apartment
• He talked to Whitman Jr. in prison but never told him that he burned down the house or any of the other things he testified too
• He admits to being in debt but that it was not a big deal he has been in debt for some time and has always managed
• He loves his son
• He said he would never have seriously hurt his son

8. James was sentenced to life in prison without the possibility for parole.

9. James is currently incarcerated at the State Correctional Institute in Rockview, PA serving this sentence.

According to the various reports made in this case, the following is known about the scientific and para-scientific evidence that was presented at trial:

1. According to the “Supplement Report” created by William H. Sweet of the Susquehanna Township Police on August 28, 1976, the following was noted (Read the entire Supplemental Report):

1.1. “John C. Brindle, Sr., Fire Marshall of Susquehanna Twp., was interviewed at the scene on 28 August 1978, and related the results of his investigation, in regard to ruling out the accidental causes of the fire in the case. He further was of the opinion that the fire was entirely too rapid and intense to have been of accidental origin.” (emphasis added)

1.2. “Examination revealed a large ‘flammable liquid flow’ pattern, on the masonite flooring of the bedroom, located in the northwest corner of the building. The flow pattern existed just inside the bedroom door and ran from the west wall to the center of the room up to the base of the dresser along the north wall . . . Additional flow patterns were found in the living room, near the doorway into the dining room.”

1.3. “Most of the aluminum frame of the patio door had melted from the heat and only a small portion of the base remained partially melted. This being an indication of abnormally high temperature.”

1.4. In the report, there are remarks about holes in the carpet or in the floor. Although not directly stated, at the time of these events, it was common for fire scene investigators to opine that because heat rises, fire burns up and out and will not burn downward unless it has “help” (referring to an accelerant).

1.5. Absent in this report or any report is an identification of ignition source, first fuel or origin.

1.6. Analytical chemistry was involved in this case in the precise areas where the Fire Marshall believed that there was accelerant. The laboratory’s conclusion was that there was no petroleum distillate present on any of the first batch of samples. The collected burned underpants also had no Volatile Organic Compounds (VOC’s). The sample of the flooring at the burn patterns also had no VOC’s. The laboratory only did a boiling point analysis for possible hydrocarbons for item 2 of the second batch, which was the flooring near the dresser of the victim’s room. The report opines that the boiling point analysis of item 2 revealed “an unidentified series of hydrocarbons . . . The boiling point range of these hydrocarbons was similar to that of gasoline and lighter fluid.”

1.7. Photographs of the scene and the surrounding area were taken. They still exist.

The modern scientific analysis

1. In essence, there is no verifiable and valid proof that this was a fire of an incendiary nature, but simply a naked assertion based upon totally invalid (proven not to be true) evidence that is not in keeping with science or modern NFPA 921 or ASTM standards. This is so for the following reasons:

1.1. In section 1.1 supra, the opinion that “the fire was entirely too rapid and intense to have been of accidental origin” has been scientifically falsified and proven not to be true. It was made clear by the National Institute for Standards and Technology (NIST) controlled burn experiments that all the presence of accelerant does to impact a fire scene is hasten the time to flashover and/or full involvement of the compartment. Scientifically, accelerants absolutely do not increase temperature (or what is referred to by those in the 1970’s as “intensity”).

Sources: Controlled Non Accelerant Fire to Flashover, (last visited February 19, 2013); Controlled Accelerant Fire Flashover, (last visited February 19, 2013) (These two are video recordings from the controlled burns conducted by ATF/PSP at the Pennsylvania State Fire Academy in Lewistown, PA as part of the “Arson Investigation for Prosecutors” lecture series that I lectured at.); see also, Technical Committee on Fire Investigation, National Fire Protection Association, NFPA 921 Guide for Fire and Explosions Investigations Sec. 6.8.2.2 (2008 ed. 2008) (“Wood and gasoline burn at essentially the same flame temperature. The turbulent diffusion flame temperatures of all hydrocarbon fuels (plastics and ignitable liquids) and cellulosic fuels are approximately the same, although the fuels release heat at different rates”); and John Lentini, The Mythology of Arson Investigation (last visited February 19, 2013).

1.2. In Section 1.2. supra, there is reference to “Flammable liquid flow patterns.” This opinion in conjunction with the photographs of the scene is a very classic case of misinterpretation of what, in reality, are simply ventilation patterns. They are not accelerant pour patterns. In a flashover situation or a fully involved fire this type of pattern is to be expected. In a flashover fire, deep charring to baseboards throughout the room is a common occurrence. The irregular shapes found in floor burn patterns are caused by the irregular and dynamic nature of ventilation through the burn room, not by poured liquids.

Sources: During the live burn research conducted by The Arson Research Project, irregularly shaped fire patterns on the floor and deep burn damage to baseboards and furniture at floor level were observed in every burn cell, regardless of the presence of a flammable liquid. Paul Bieber, The Arson Research Project Fire Pattern Analysis And Case Study Review In Post-Flashover Fires (last visited February 19, 2013); see also Anthony Putorti, Full Scale Room Burn Pattern Study, National Institute of Justice Report 601-97, December 1997; Ronald Hopkins et al., Fire Pattern Persistence And Predictability On Interior Finish And Construction Materials During Pre And Post Flashover Compartment Fires, (last visited February 19, 2013).

1.3. In Section 1.3. supra, there is reference to the metal melting versus other portions of the area with an opinion that this is “an indication of abnormally high temperature.” This too is totally false. In a flashover fire or a fully involved fire this is to be expected. This notion of melted metal being traceable to accelerant use was known to be false as early as 1969.

Sources: Paul L. Kirk, Fire Investigation 145 (1969); John J. Lentini, The Mythology of Arson Investigation, (last visited February 19, 2013).

1.4. In Section 1.3. supra, there is reference to holes being in the carpet or in the floor and the likely testimony that resulted that can be summarized as “because heat rises, fire burns up and out and will not burn downward unless it has ‘help’” referring to accelerant. This simplistic explanation of fire behavior has formed the basis of many an arson investigator’s determination of incendiary cause and plays very well with a jury that has no knowledge of flashover. It too has been falsified.

Sources: NFPA 921 Section 6.17.2.2. reads “Like other areas of low burning, holes in the floor can be produced by the presence of ignitable liquids, glowing embers, or the effects of flashover or full room involvement.”

1.5. There is no identification of ignition source, first fuel, or origin. These are essential per NFPA 921.

Sources: NFPA 921 Section 12.3, 12.4, 12.5 and 12.6.

1.6. The analytical chemistry disproves the use of accelerant at all in this case. It is very likely that one result was mis-characterized to the jury. In the precise areas where the fire marshal believed that there was accelerant, the laboratory’s conclusion was that there was no petroleum distillate. The burned underpants also had no VOCs. The flooring of the burn patterns also had no VOC’s. The laboratory only did a boiling point analysis for possible hydrocarbons for item 2, which was the flooring near the dresser of the victim’s room. Boiling point analysis was never a confirmatory test, even in 1978. It could never stand alone as a method of identification. It is a forensically unacceptable analytical technique to definitively determine VOC’s as it is a wholly non-specific method of analysis. Melting point (Mp) analysis, as it is technically called, is a simple analysis. It was a potential screening method back in the 1970’s, but is not favored even back then as there are much better and more specific methods to identify accelerant. The core of the issue with Mp analysis is that many substances have similar melting points. The thermometers used in the 1970’s were not NIST traceable as they should be today. Mp is dependent on pressure as well. The biggest source of error stems from the visual detection of melting by the experimenter. Further, it is well known that false positives from this crude method of analysis occur. The source of these false positives generally fall into “two basic categories: (1) actual liquid petroleum products that are present in the substrate material; and (2) substrate materials that pyrolyze to form interfering volatile compounds in the range of common ignitable liquids. Previous work has revealed that many items used in homes and buildings are made of synthetic materials that, when exposed to fire conditions, will produce volatile pyrolyzates in the boiling point of range of commonly encountered ignitable liquids. Early research focused primarily on the latter category, and studied the pyrolyzates of common building materials such as wood, carpet, and floor tile.”

Sources: John J. Lentini et. al., The petroleum-laced background, 45(5) J. Forensic Sci. 968 (2000); I.C. Stone & J.N. Lamonte, False positives in the analysis of fire debris, 34(3) Fire & Arson Investigator 36 (1984); John Howard & Bruce McKague, A fire investigation involving combustion of carpet material, 29(3) J. Forensic Sci. 919 (1984); R.W. Clodfelter & E.E. Hueske, A comparison of decomposition products from selected burned materials with common arson accelerants, 22(1) J. Forensic Sci. 116 (1977); and J.D. DeHaan & K. Bonarius, Pyrolysis products of structure fires, 28 J. Forensic Sci. 299 (1988).

Additional potentially important information to consider

Summary of a sworn statement by Thomas McQuaid on October 11. 1979:

• Statement concerning the testimony delivered at the trial of James Hugney
• Harry Whitman lied in his testimony concerning Hugney
• He knows Whitman lied because he overheard a phone conversation between Whitman and Linda Lane
• During this conversation he told her he would be out in time to see their twins born
• He told her to get in contact with DA’s office because he had information
• She asked about him lying said he didn’t care just wanted to get out to see his twins born

Summary of Sworn Statement of Rudolph Hill on October 30, 1979:

• Spoke with Whitman while serving time is DCP with him
• Whitman told Hill that he made up the testimony against Hugney
• Whitman told him that he was going to make up the testimony that Hugney told him he intentionally started the fire
• Whitman explained that he would testify that Hugney told him this in the kitchen
• He said he wanted to make this information up so he could get out of jail
• Threated Hill that if he said anything he would give some information on him too because Kleinfelter was prosecuting Hill as well and Whitman had a relationship with the DA

Summary of Sworn Statement of Jerome Britton on October 11, 1979:

• Whitman stated he was going to have Hugney “burned”
• Whitman told him it was not only Whitman but Whitman and his dad that concocted this plan
• Admitted that he was going to testify that Hugney admitted to him to starting the fire and killing his son
• The statements were made by Whitman because his father was seeing Hugney’s wife and he felt that Hugney was trying to mess up what his father had with Hugney’s wife

Conclusion

It is ironic that the historical phrase “Justice Delayed is Justice Denied” is attributed to William Penn, the founder of the Commonwealth of Pennsylvania.

The idea expressed by the phrase can already be found in the Pirkei Avot 5:8, a section of the Mishnah (1st century BCE – 2nd century CE): “Our Rabbis taught: …The sword comes into the world, because of justice delayed and justice denied…”,and the Magna Carta of 1215, clause 40 of which reads, “To no one will we sell, to no one will we refuse or delay, right or justice.”

Martin Luther King, Jr., used the phrase in the form “justice too long delayed is justice denied” in his “Letter from Birmingham Jail”, smuggled out of jail in 1963.

These words are true. Mr. Hugney is due his fair day in court, even if it is some 36 years later. A new trial is warranted where justice may come. This is a case where if he is guilty, then let a fully informed jury come to that decision, not a mob and not based on underdeveloped and now invalidated science.