Samuel Anstey, Petitioner Below, Petitioner v. David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent Supreme Court No. 15-0067 FILED June 2, 2016 released at 3:00 p.m. Chief Justice Ketchum, dissenting: RORY L. PERRY, II CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

Oliver Wendell Holmes once stated: “Certitude is not the test of certainty. We have been cock-sure of many things that were not so.”1 That statement encapsulates the error of the majority in affirming the denial of habeas relief. The error is twofold. First, the majority fails to realize that the State’s investigating witnesses, based on group-think and the quantity of the evidence rather than its quality, concluded, unscientifically, that the fire was intentionally set. Second, the majority has accepted the determination of the habeas court that Anstey’s assertion of newly-discovered evidence, i.e., the advancement in fire science represented by NFPA 921, as amended, does not even warrant an omnibus habeas corpus hearing. Given the complexity of the evidence, Anstey cannot reasonably present grounds for a new trial unless an omnibus habeas corpus hearing is conducted. Therefore, the issue is not whether this Court should award him a new trial. Instead, the issue is whether Anstey has made a case for an evidentiary hearing and whether the habeas court abused its discretion in denying him one. I am of the opinion that Anstey meets the standards which would entitle him to an omnibus habeas corpus hearing. I, therefore, dissent.

I. Standards For Conducting An Omnibus Habeas Corpus Hearing The habeas court compared an eleven-day trial with the affidavits of two experts submitted by Anstey and summarily concluded, without findings of fact and conclusions of law, that “no testimony or other evidence is necessary.” However, Rule 9(a) of the Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia requires as follows: If the petition is not dismissed at a previous stage in the proceedings, the circuit court, after the answer is filed, shall, upon a review of the record, if any, determine whether an evidentiary hearing is required. If the court determines that an evidentiary hearing is not required, the court shall include in its final order specific findings of fact and conclusions of law as to why an evidentiary hearing was not required.^[2] The habeas court had before it Anstey’s petition, the affidavits of his experts, the State’s answer to the petition, and Anstey’s response to the State’s answer. The positions of the parties were, thus, joined and in sharp conflict over the evidentiary value of NFPA 921 as newly-discovered evidence. Nevertheless, the habeas court unfairly determined in a single paragraph without the requisite findings that an omnibus hearing would not be conducted.

The habeas court then extrapolated findings and conclusions on the merits of Anstey’s petition. As a result, this Court is left, on appeal, “greatly at sea without a chart or compass”3 in the absence of an evidentiary transcript from which the ultimate findings of the habeas court may be reviewed. It was an abuse of discretion and a denial of Anstey’s right to due process not to conduct an omnibus habeas corpus hearing in this case.

II. The Mandate of the West Virginia Legislature

During the 1995 trial, State’s expert Harold Franck referred to the NFPA standards

as follows: “So it is a set of guidelines that have been developed over the past few years, and, hopefully, the NFPA wants to have those as national standards at some point.” (emphasis added). Franck’s surmise came true. NFPA 921 became the national authority for standards in fire science and investigation years later in 2000 upon its endorsement by the United States

Department of Justice.^[4]

Since recognition by the Department of Justice, NFPA standards have been included in the law of this State by the West Virginia Legislature. W.Va. Code, 29-3-5(b) [2010], of the West Virginia Fire Prevention and Control Act, states in part: “Whenever any new or revised code or standard is adopted by the fire codes published by the National Fire Protection Association, the State Fire Commission may propose and promulgate revised rules reflecting such updated codes and standards[.]” (emphasis added). See W.Va. Code, 29-3­ 16a [2012] (adopting NFPA standards for the installation of smoke detectors and sprinkler systems in one- and two-family dwellings, including any “manufactured home”); Title 87 of the Code of State Rules: § 87-1-2 [2014] (adopting NFPA’s National Fire Codes); and § 87­ 4-4 [2013] (adopting certain NFPA provisions with respect to the State Building Code). See also § 103-3-3.18 [2015] (pertaining to the State Fire Marshall, adopting standards and requirements as published by the NFPA).

Significantly, Series 8 of Title 87, designated “Volunteer Firefighters’ Training, Equipment, and Operating Standards” (§ 87-8-1, et seq.), references a number of NFPA provisions concerning training levels, curriculum approval and equipment standards. The unit initially responding to and investigating the trailer fire in this case was the Oak Hill Volunteer Fire Department. Syllabus point 5 of Smith v. W.Va. Human Rights Comm’n, 216 W.Va. ^[2], 602 S.E.2d 445 (2004), holds: “A regulation that is proposed by an agency and approved by the Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures Act, W.Va. Code, 29A-1-2(d) [1982], and such a legislative rule has the force and effect of law.” Accord syl. pt. ^[2], State ex rel. Maple Creative LLC v. Tincher, 226 W.Va. 118, 697 S.E.2d 154 (2010). Accordingly, insofar as NFPA standards have been recognized by the West Virginia Legislature, the State Fire Commission and the State Fire Marshall, NFPA standards enjoy a higher status than merely an expert opinion on what the proper standard ought to be.^[5] The NFPA standards necessarily include NFPA 921. In view of the extent to which NFPA

standards permeate West Virginia law, it cannot be said that NFPA 921 is excluded. For example, given the requirement of W.Va. Code, 29-3-16a [2012], that smoke detectors or sprinkler systems are to be installed pursuant to NFPA standards in manufactured homes, it makes no sense to ignore NFPA 921 where a fire in a manufactured home resulting in death has occurred.

The incorporation of NFPA standards into West Virginia law, including NFPA 921, was never addressed by the habeas court. This State’s incorporation of those standards constitutes an additional reason why an omnibus habeas corpus hearing should have been conducted.^[6]

III. Certitude Is Not Certainty

Without doubt, the fire investigation conducted by the volunteer firefighters at the trailer is questionable. The appendix record before this Court includes no reports or exhibits

of any kind with regard to the underlying trial. All we have is the trial transcript. However, it is undisputed that the toaster and the trailer’s breaker switches were manipulated during the first stages of the investigation. One of the State’s witnesses in charge of the Oak Hill

Volunteer Fire Department’s investigation unit moved the toaster’s plunger up and down

before photographing the toaster.^[7] Moreover, although volunteer firefighters had flipped the trailer’s main electrical breaker to the off position, that same witness flipped three other breaker switches back and forth to the off and on positions to determine whether those switches had tripped during the course of the fire. His testimony in that regard seems uncertain: A. I would say I put them back to the off position. I flipped them off to – as sort of a reminder when I was doing a report or something what three breakers were tripped, in my opinion.

The evidence at trial concerning the electrical circuitry in the trailer was directly relevant to whether a living room lamp short-circuited resulting in the fire and tripping a breaker switch which, in turn, shut off the power to the electric smoke alarm.

A case strikingly similar to the current matter was before the Court of Appeals of Indiana in Bunch v. State, 964 N.E.2d 274 (Ind. Ct. App. 2012). In Bunch, the defendant was convicted of the murder of her son involving a fire in their mobile home. The son was found

in a bedroom and died at the scene from smoke inhalation. During the defendant’s 1996 trial, the State relied largely on expert testimony which described the presence of an accelerant and two separate fires - one in the bedroom where the son was found and another in a doorway.

In Bunch, the State used its two-fire theory to assert that the fires were intentionally set. The defendant’s expert witness testified that the mobile home fire should have been classified as undetermined. The murder conviction was affirmed on direct appeal.

The Court of Appeals of Indiana, in Bunch, reversed the decision of the habeas court and awarded the defendant a new trial, concluding that the new evidence was neither

cumulative nor solely for purposes of impeachment. One of the grounds of reversal was the testimony of the defendant’s post-conviction expert witness, Jamie McAllister. McAllister concluded that the fire started accidentally in a confined space (between the bedroom ceiling

and the roof) and was not caused by an accelerant. McAllister’s conclusion was based, in part, on the toxicology and autopsy reports indicating that the son, inhaling smoke and soot, reached an 80% carbon monoxide saturation level without thermal damage to his respiratory system, suggesting an under-ventilated fire rather than a well-ventilated fire in an open room.

Granting the defendant post-conviction relief, the Court of Appeals in Bunch stated:

McAllister also testified the consideration of a fire victim’s physiological condition did not become a recognized component of the fire origin analysis until after 2001, the first time a chapter on the fire-related deaths appeared in the National Fire Protection Association 921 Guide for Fire and Explosion Investigations (“NFPA 921"), which is “a peer reviewed and generally accepted standard in the fire investigation community.” Travelers Prop. & Cas. Corp. v. General Elec. Co., 150 F.Supp.2d 360, 366 (D. Conn. 2001). * * * The post-conviction court’s finding that [the defendant’s] post-conviction evidence is just “different packaging” for the same conclusion does not give appropriate due to the science which has emerged since [the defendant’s] trial to support that conclusion.

964 N.E.2d at 287, 289.8 In Bunch, a post-conviction, evidentiary hearing was conducted. During the hearing, the defendant was able to develop the record with new expert testimony of a complex nature

concerning the fire in the mobile home. Consequently, an expanded record and comprehensive order from the post-conviction court were before the Court of Appeals of Indiana for review. By contrast, no evidentiary hearing was conducted by the habeas court with regard to Anstey’s petition which, as in Bunch, alleged newly-discovered evidence pursuant to an amended NFPA 921. The principles set forth in NFPA 921 played no part in Anstey’s 1995 trial.^[9]

resolution stating, in part, that “the Oklahoma State Senate urges the judicial branch, law enforcement agencies, and other relevant government entities in Oklahoma to employ NFPA 921 when conducting fire investigations.” 964 N.E.2d at 288 Manifestly, the publication of NFPA 921 and its periodic amendments do not, per se, constitute newly-discovered evidence in the absence of a nexus between its provisions and the facts of a particular case. Here, the habeas court summarily concluded that “no testimony or other evidence is necessary.” I disagree. The granting of an omnibus habeas corpus

hearing was warranted by the following: (1) the standards for conducting a hearing under the habeas rules and the Post-Conviction Habeas Corpus Act, (2) the recognition of NFPA 921

by the West Virginia Legislature, (3) the complexity and scientific aspects of the trial and post-trial evidence, and (4) the problems concerning the investigation at the scene.^[10]

IV. The NFPA 921 Affidavits Ultimately, the question in this case is whether Anstey’s affidavits from two new experts on fire investigation constitute newly-discovered evidence and justify an omnibus habeas corpus hearing. The experts are Dr. Gerald Hurst, a consulting chemist on fires and explosions, and Mark Goodson, a consulting engineer. Obviously, the fact that Hurst and Goodson’s conclusions may coincide with the conclusions of Anstey’s experts at trial does not mean that a jury will return the same verdict as before. As Anstey suggests, if a similar conclusion about the fire is more logically sound and can be shown to be scientifically valid based on NFPA 921 criteria, as amended, the conclusion is likely to be more persuasive and readily acceptable by a jury.^[11]

Hurst’s affidavit notes that, since its initial publication in 1992, new editions of NFPA 921 have been issued every three or four years and that the 2011 edition is the current version. Concluding that the trailer fire remains undetermined, Hurst indicates that “to a reasonable degree of scientific certainty” the State’s investigation “did not conform to recommended fire investigative protocol, was not conducted in a methodical and reliable fashion, and did not utilize the scientific method to determine origin and causation.” Specifically, Hurst determined that the State’s hypothesis, that a fire originated with the toaster and also in the victim’s bedroom, was not scientifically valid. Instead, according to Hurst, the State’s hypothesis fell victim to “expectation bias,” rather than validation through the scientific method.^[12]

Mark Goodson notes in his affidavit that NFPA 921 incorporates the scientific method into the field of fire investigation and has become the standard for assessing the reliability of expert testimony. With regard to the trailer fire, Goodson concluded: It is clear based upon my review of the transcripts of the State’s origin and cause witnesses that they did not follow the scientific method in connection with their investigation of the trailer fire. Rather, the State’s experts relied upon outdated methods that had permeated the fire investigation community for years prior to the time of their investigation and testimony, and those methods are no longer accepted within the fire investigation community today. Attached to Hurst and Goodson’s affidavits is an appendix which lists the materials, in compact disc form, provided for Hurst and Goodson’s review. The materials consist primarily of testimony and exhibits from Anstey’s 1995 trial. Although a large quantity of material was provided, Goodson’s affidavit suggests that the data is not a reliable source to use in trying to determine how the fire started.^[13] For example, Goodson states in his affidavit: “It is standard engineering practice to x-ray breakers from circuits that feed suspected fire causative appliances (in this case, the toaster) and to test the breakers electrically for proper functioning. This was not done.”

It has been said that expert opinion “is only an ordinary guess in evening clothes.”14 While that statement appears descriptive of the evidence in Anstey’s 1995 trial, it is not reasonably applicable to the new evidence, backed up by NFPA 921, which Anstey seeks to present in this habeas corpus proceeding. At the very least, the affidavits of Hurst and Goodson rightly form the basis for granting an omnibus habeas corpus hearing. V. Conclusion In my view, Anstey has shown newly-discovered evidence in the form of the advancement in fire science and arson investigation in the intervening years since his conviction. The advancement is represented by the National Fire Protection Association 921 Guide for Fire and Explosion Investigations (NFPA 921). NFPA 921, as amended, is now recognized by the Department of Justice and by this State through the mandate of the West

Virginia Legislature.

Moreover, Anstey has correctly shown that the habeas court’s refusal to grant him an evidentiary omnibus habeas corpus hearing prevented him from demonstrating the substantial impact of NFPA 921 on the expert testimony presented during his 1995 trial. The evidence Anstey proposes to introduce may very well place his conviction in a different light by exposing the conclusions of the State’s witnesses as objectively unreliable. However, he cannot present that evidence as grounds for a new trial unless a hearing is conducted. The circuit court abused its discretion in denying Anstey the opportunity to develop the record. Due process requires an omnibus habeas corpus hearing in this case.^[15] Therefore, I respectfully dissent.