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Arson & Malicious Destruction of Property
Intelligent Defense of Arson Charges
To successfully represent an individual accused of arson, a criminal defense lawyer must have a thorough understanding of the multi-disciplinary approach to law enforcement’s solving and proving arson cases. Arson investigation involves more than a routine police investigation into who set a fire; it’s a joint effort between the municipal police and fire departments and, if serious enough, the Office of the State Fire Marshall, a division of the Massachusetts State Police. An arson investigation is not limited to members of law enforcement examining the smoldering remains of a burned building for clues; indeed, it may include forensic accountants, chemists, electricians and, even, plumbers.
Attorney Kevin J. Mahoney worked with the Boston Fire Department and a forensic accountant to meticulously piece together a convincing case against the owner of 84 Essex Street for starting the devastating 9-alarm Chinatown fire to win a civil trial verdict of $389,000.00 in Ming's Import, Inc., et al. v. Stephen L., et al. The fire was caught on film by CBS’s show 48 Hours. Attorney Mahoney successfully defended John Rousseau, who had been indicted for five separate arsons in the Town of Clinton.
Understanding Arson Investigation
The fire department, together with the municipal police and Office of the State Fire Marshall, will attempt to determine if the fire was deliberately set, the result of an accident, or caused by faulty electrical wiring. “Solving” a suspected case of arson is inherently difficult because the fire, as well as the water and chemicals used to put out the flames, consumes or damages much of the evidence.
To ascertain the cause of the fire, the fire department will begin by questioning the firefighters who responded to the fire. These firefighters have been trained to notice such things as the color, thickness, and “behavior” of the smoke, noises, such as explosions, and other fire “irregularities.” Investigators begin examining the debris once the fire is extinguished and the area made reasonably safe.
Investigators examine remains for trace evidence, including fire burn patterns, multiple points of origin, containers of flammable liquids, indications of forced or blocked entry, fingerprints and test the debris for accelerants with a Gas-chromatographic/Mass-spectrometer and/or a Thermal Desorption System. When performing fire cause/origin analysis, fire investigators often seek out thermal patterns to identify the origin of the fire. Thermal patterns may be found on charred wood, soot deposition, melting, spalling and structural deformation.
A forensic accountant is employed to determine the pre-fire value of the property, assess the financial condition of the owner, including any “hidden” debt, and identify any insurance policies on the property.
Winning Arson Trials
Arson prosecutions are often premised on expert opinion evidence and little else. Other than the ashes and smoking frame, very little of arson investigation is definite. Amid the ruins of a once valuable home or building, even experienced investigators may have difficulty discerning and properly interpreting thermal patterns, identifying the point of origin, and the cause of the fire. The destruction may be so complete that investigators are left with only partial and conflicting clues.
To “solve” a fire, investigators may mischaracterize improperly stored ignitable fluids, like gasoline to power a lawn mower, camping stove fuel, or paint thinner, as the arsonist’s accelerant. With incomplete pieces, investigators can offer only imperfect opinions, often disguised as “facts.” With his experience in arson investigations, Attorney Mahoney, with the assistance of an able forensic investigator, is able to discern the flaws in the fire department’s analysis – essentially separating the facts from the fiction. And, as is the case with all criminal trials, effective cross-examination is the key to victory. In his best selling book, Relentless Criminal Cross-Examination, Mahoney teaches criminal defense lawyers how to effectively cross-examine forensic experts.
If there is little doubt that the home or building was destroyed by arson, the prosecution is obligated to prove the identity of the arsonist. Since extremely few arsonists are caught in the act, short of a confession, correctly identifying the arsonist can be a formidable task. Because arson cases are often built on conjecture rather than solid proof, a capable criminal defense lawyer should be able to obtain acquittals for many, if not most, individuals accused of arson.
If you or a loved one is accused of arson or malicious destruction of property, call us at 617-492-0055 or use our online contact form to arrange a free in-office consultation.
Arson Statutes
Burning of a Dwelling House (G.L. c. 266, § 1).
The Commonwealth must prove beyond a reasonable doubt that: 1) the defendant possessed malevolent intent to burn or cause to burn a house or adjacent building; 2) burned or caused to be burned a house or adjacent building; and 3) the building must have been a house or a building where people resided.
Attempted Arson (G.L. c. 266, § 5A)
The Commonwealth must prove beyond a reasonable doubt that the defendant possessed malevolent intent to burn a building or other property, and that the defendant took the necessary steps to prepare to burn a building or property.
Arson of a Building (G.L. c. 266, § 2)
The Commonwealth must prove beyond a reasonable doubt that the defendant deliberately burned a ship, building, railway, streetcar or other structure.
Burning Insured Property with Intent to Defraud (G.L. c. 266, § 10)
The Commonwealth must prove beyond a reasonable doubt that the defendant possessed the desire and purpose to burn the property, that the defendant burned or attempted to burn the property, that the property was insured, and that the defendant burned the property with the intent of collecting the insurance.
Willful and Malicious Destruction of Property (G.L. c. 266, § 127)
The Commonwealth must prove beyond a reasonable doubt that the defendant willfully and maliciously destroyed or harmed the property of another.
Results
Commonwealth vs. J.R., Worcester Superior Court
Arson – Dismissed
Arson – Dismissed
Arson – Dismissed
Arson – Dismissed
Arson – Dismissed
B&E – Dismissed
B&E – Dismissed
B&E – Dismissed
B&E – Dismissed
The Defendant was the prime suspect in a series of fires in the town of Clinton. Members of the Clinton Fire Department, Clinton Police Department, State Police, and Railroad Police descended upon the Defendant’s home armed with a search warrant. The police seized, destroyed or damaged the Defendant’s personal property. They attempted to question the Defendant, but he invoked his right to an attorney. However, when the police threatened to tear down the house and put his family on the street, the Defendant confessed to the setting the five fires. After a four month long hearing on Attorney Mahoney’s motion to suppress the Defendant’s confession, the judge ruled the confession inadmissible. On the day of trial, Mahoney filed a motion in limine, convincing the trial judge to rule that the prosecutor couldn’t introduce additional statements from the Defendant that had not been suppressed. The District Attorney’s Office was forced to dismiss all the charges.
Commonwealth vs. G.B., Framingham District Court
Home Invasion – Dismissed
Home Invasion – Dismissed
B&E – Not Guilty
B&E – Not Guilty
A&B – Not Guilty
A&B – Not Guilty
Assault – Not Guilty
Malicious Destruction of Property – Not Guilty
Malicious Destruction of Property – Not Guilty
Threats – Not Guilty
The witnesses testified that the Defendant and co-defendant forced their way into home #1 and threatened, struck the residents and broke furniture. The Defendant and co-defendant proceeded to home #2 where they again forced way into home, assaulted the residents and destroyed furniture, lamps and a vacuum cleaner before leaving. The Defendant and co-defendant were arrested as they drove away.
TOPRelentless
Criminal
Cross-Examination
“Aside from its excerpts of cross-examination, the book offers extremely valuable wisdom regarding overarching trial strategies (e.g., defense counsel demeanor; tone, tenor, and timing; why you should not call defense witnesses; etc.) The wisdom offered is alone extremely ..."
- Amazon.com Review
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