Trial by Fire

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In recent years, DNA profiling has saved the lives of a number death row inmates. When it comes to arson, however, DNA typing is often useless, as any such evidence is usually incinerated. As a result, writes Radley Balko in Reason (Dec. 2010), prosecutors rely on the testimony of fire investigators and psychologists to support their claims of criminal intent.

Take the case of Cameron Todd Willingham. In 2004 the state of Texas executed Willingham after he was convicted of starting the house fire that killed his three daughters. An investigative piece in the New Yorker cast doubt on the conviction, and the Texas Forensic Science Commission took a deeper look and found that the claims of arson were unsubstantiated.

Balko argues that mistakes like Texas’ could be avoided by a two-phase, or bifurcated, trial process: One phase would determine whether a crime actually took place; if it was decided that there was a crime, a second trial could be convened to assess the guilt of the accused.

Separating these phases would eliminate a jury’s prejudice in favor of conviction. Willingham’s case hinged on the testimony of a jailhouse informant, as well as assertions from courtroom psychiatrists that the defendant’s Led Zeppelin and Iron Maiden posters indicated “a death-obsessed psycho­path who was likely to kill again,” writes Balko.

There’s precedent for bifurcation in criminal and civil proceedings to avoid just such jury prejudice—for example, separating the death penalty sentencing phase from the trial process, and the convening of grand juries to determine whether enough evidence exists for charges to be brought in federal cases.

Prosecuting arson cases with bifurcated trials would “help juries deliberate verdicts as objectively as possible.” It might also have saved Cameron Todd Willingham’s life.

This article first appeared in the March-April 2011 issue of Utne Reader.