How to Win an Arson Case

Krieger

How to Win an Arson Case

A strip mall on fire, with firefighters attacking the fire

Even if nobody is injured, fires create a deadly serious risk, so starting a fire is one of the most serious crimes you can be charged with in Massachusetts.  A person convicted of arson can go to State Prison for up to 20 years, and even attempting to set a fire can lead to 10 years in prison!

To understand how to beat an arson case, it’s important to start by understanding what the state has to prove.  There are different types of arson–dwelling house, building, motor vehicle, etc.  But they all have the following points in common that the DA has to prove:

A house fully involved in fire, with two ladder trucks attacking the fire.

  1. There was a fire;
  2. You started it (not somebody else), or you helped or advised the person who started it, or you hired or recruited that person;
  3. You intended to start a fire (it wasn’t an accident);
  4. You did it maliciously.  This means that you had a wrongful intent, or that you intended to start the fire and did so without any legal excuse.

In most cases, the third and fourth elements rise and fall together, and whatever proves one will prove the other.  Usually, defenses to arson will fall into three categories:

Andrew Shulman Charles O'Leary Ted Lothstein Andrew Cotrupi Stephen Bennett

  1. Mistaken identification: the got the wrong person.  You didn’t start the fire, somebody else did.
  2. Accident: you didn’t start the fire on purpose, it was accidental.
  3. Diminished capacity: you were so mentally ill, or so intoxicated, that you were unable to form the intent or the malice required by law to commit arson.

In this post, I will briefly discuss proof of “cause and origins” (related to the defense of accident), and diminished capacity defenses.

Cause and Origins

Arson is unique in that the crime intrinsically destroys the evidence.  In some cases, there will be clear evidence (such as video footage, or a confession) of who set the fire and the fact that they set the fire on purpose.  In most cases, however, police and firefighters rely on forensic evidence from the ashes of the fire to prove the cause and origin of the fire.  For a long time, the forensic “science” of fire analysis was passed down from senior firefighters to new trainees with little scientific rigor.  The result was a system of “proving” arson that was little more than witch doctoring.  In recent decades, fire science has proved that almost every aspect of the old methods was wrong, and brought a new scientific rigor to cause and origin investigations.  Surprisingly, however, the old methods are still around!  One of the more common holdovers is the use of “arson dogs” to detect the presence of accelerant at a fire scene.  When the dog alert cannot be confirmed by lab tests, it gets explained away with the claim that “the dog is better than science.”  But science–and justice–beg to differ. In 2010, the Federal Court in Boston reversed an arson conviction after finding that a defense lawyer ineffectively failed to challenge the use of such an “arson dog” during the trial!

Diminished Capacity

The phrase “diminished capacity” here includes both insanity and intoxication defenses.  In an insanity defense, the defense offers evidence that the defendant did commit the crime, but was so mentally ill that they either 1) could not understand that what they were doing was wrong, or 2) could not control their conduct.  Winning an insanity defense is hazardous, because even if you avoid prison, you can end up civilly committed to a mental hospital.  However, in some cases it may be possible to avoid civil commitment (for example, if the defendant has stabilized in treatment since being arrested), and in other cases, the prospect of civil commitment may be less hazardous than the prospect of a felony conviction and prison sentence if convicted. Insanity defenses deserve careful evaluation in each case, and ultimately the lawyer and client will decide if this is the right strategy to pursue.

Intoxication is another version of a diminished capacity defense.  Intoxication can be either involuntary or involuntary.  Involuntary intoxication means that you didn’t intend to become intoxicated–somebody drugged you, or you drank something that you didn’t realize was alcoholic, or you had an unexpected reaction to medication that you took.  Voluntary intoxication means that you ingested a substance (alcohol or drugs) on purpose, and got yourself really intoxicated, on purpose.  Voluntary intoxication itself isn’t a defense–if it were, you could get yourself drunk and commit any crime that you want, free of consequence!  Where voluntary intoxication comes into play is if you are so extremely intoxicated that you are no longer in control of yourself.  Beyond that point, the state cannot prove that you intentionally and maliciously set a fire on purpose, because you were so intoxicated that you couldn’t do anything on purpose.  Attorney Cowan has won an arson case using a voluntary intoxication defense.  It is very rare, and the facts need to support it, but it can happen.

Starting Your Arson Defense

If you or a loved one has been charged with arson, it’s important to get your expert defense counsel on board as soon as possible.  Call 617-906-6268 to schedule a free consultation.  Attorney Cowan will review your police reports, talk to you about the facts of the case, and discuss your options and possible fees.  If you are calling on behalf of a loved one who is held on bail (or held without bail) pending arson charges, Attorney Cowan will conduct the free consultation at the jailhouse with the individual who is charged.

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