In re Parks

Filed 8/3/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re B296998
JOANN PARKS
(Los Angeles County
On Habeas Corpus. Super. Ct. No. VA009503)
ORIGINAL PROCEEDING; petition for writ of habeas
corpus, William C. Ryan, Judge. Petition denied.
________________________________
California Innocence Project, Justin Brooks, Alex Simpson,
and Raquel Cohen for Petitioner Joann Parks.
Duane Morris, Paul J. Killion, William S. Berman,
B. Alexandra Jones and Holden Benon for The Innocence Network
as Amicus Curiae on behalf of Petitioner Joann Parks.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Louis W. Karlin and Michael R.
Johnsen, Deputy Attorneys General, for Respondent Secretary of
Department of Corrections and Rehabilitation.
Over 25 years ago, Joann Parks was convicted of murdering
her three young children by setting a house fire that killed them.
She seeks relief from these convictions via a petition for writ of
habeas corpus, in support of which she offers evidence regarding
various developments in fire investigation science and methodology
since her trial. Parks argues the current scientific understanding of
burn patterns and how fire behaves under certain conditions fatally
undermines expert testimony offered by the prosecution at trial
regarding the cause and origin of the fire at Parks’s home, as well
as the fire scene investigation on which the experts based those
opinions. She contends this expert testimony therefore constitutes
false evidence under Penal Code section 1473, subdivision (e)(1), 1
and that there is a reasonable probability it affected the outcome of
her trial, entitling her to relief under section 1473, subdivision (b).
Parks seeks relief on federal constitutional grounds as well, arguing
that the prosecution presented its experts’ opinions as infallible
truth, that the unevolved state of fire investigation science at the
time of trial prevented the adversarial system from exposing such
testimony as flawed and unreliable, and that this rendered her trial
so fundamentally unfair as to violate her right to due process.
In 2017 and 2018, the trial court held an evidentiary hearing
on Parks’s habeas petition, at which several expert witnesses
testified regarding modern fire investigation standards and science
and how the expert testimony offered at trial fares thereunder.
The defense experts at this hearing echoed criticisms of the
prosecution’s expert trial testimony that Parks’s trial expert had
voiced decades earlier—albeit with additional scientific support
that had since become available. Prosecution expert witnesses
1 All further unspecified statutory references are to the Penal
Code.
2
at the evidentiary hearing concluded that the prosecution experts’
opinions at trial regarding the cause and origin of the fire were
correct, even under modern standards, and that their methodology
complied with current fire investigation guidelines and best
practices. Thus, the same scientific debate between prosecution
and defense experts the jury heard at trial continues today, only
with each party’s position bolstered with today’s level of scientific
knowledge. Such a debate does not establish that false evidence
was offered at trial and does not warrant relief under section 1473,
subdivision (b). Nor has Parks identified any industry standard
or authority establishing that the challenged expert opinions
regarding the cause and origin of the fire have been so “undermined
by later scientific research or technological advances” that they
constitute false evidence for the purposes of section 1473,
subdivision (e)(1).
All defense and prosecution experts at the 2017/2018
evidentiary hearing did agree, however, that the prosecution’s trial
expert had been wrong in one respect: whether a “flashover” had
occurred during the fire, something that would have affected his
analysis of the fire scene. But Parks has not established that such
testimony had a substantial material effect on the ultimate opinion
of the prosecution’s experts regarding the cause and origins of
the fire or on her trial. Therefore, she has not met her burden
of establishing that she is entitled to relief under section 1473,
subdivision (b).
We note that Parks has identified real advances in fire
investigation science, and our decision is not intended to suggest
otherwise. But section 1473, subdivisions (b) and (e)(1) condition
the availability of habeas relief on the effect such advancements
likely would have had on the particular expert testimony at issue in
the particular proceedings at issue. Here, given the extent to which
3
the same criticisms of the prosecution’s expert testimony were
litigated at the original trial, the continuing expert debate on
these topics reflected at the evidentiary hearing, the lack of any
authority rejecting some aspect of the original investigation as
improper or incorrect by current standards, and the other evidence
of guilt offered against Parks at trial, Parks has failed to establish
by a preponderance of the evidence that she is entitled to relief
under section 1473, subdivision (b). (See In re Sassounian (1995)
9 Cal.4th 535, 547.)
For largely the same reasons, we conclude she has failed to
establish that the state of fire investigation science at the time of
trial rendered her trial so fundamentally unfair as to violate federal
due process. Although additional scientific support for the defense’s
expert testimony at trial would have been helpful to the defense
in rebutting the prosecution expert’s opinions, the absence of such
additional support did not “ ‘ “necessarily prevent[ ] a fair trial.” ’ ”
(Duncan v. Henry (1995) 513 U.S. 364, 370, fn. 1.)
Accordingly, Parks’s petition is denied.
FACTS AND PROCEEDINGS BELOW
A. The Lynwood and Bell Fires
In 1988, the home in Lynwood where Parks lived with her
husband, Ronald Parks, and her three young children, Jessica,
RoAnn, and Ronald (Ronnie), burned down in a fire determined to
have been accidentally caused by a coiled electrical cord underneath
a pile of clothing (the Lynwood fire). 2 After the Lynwood fire,
investigators explained to Parks how they believed the fire had
started and cautioned her about such dangers.
2To avoid confusion, we refer to Parks’s husband and
children by their first names. No disrespect is intended.
4
Approximately a year later, in April of 1989, the Parks
family moved into a small converted garage in Bell, California.
Approximately a week after the family moved in, that home burned
down as well (the Bell fire). Parks’s three children died in the Bell
fire, which ultimately led to Parks’s prosecution and conviction on
three counts of murder. Those convictions are the subject of the
instant habeas petition.
B. Parks’s Murder Trial
The following is a summary of the key evidence presented at
Parks’s 1992−1993 murder trial.
1. Bell fire and investigation
Parks testified that, on April 8, 1989, she was awoken by the
sounds of her child screaming. When she opened her bedroom door,
there was a hot blast of flames and smoke. Parks could not make
it through the flames to reach her children’s bedrooms on the other
side of the home, so she ran out the patio door in her bedroom and
awakened her neighbors, the Robisons, who lived in the main house
on the same property.
Robert Robison attempted to go into Parks’s home through
the master bedroom door, but because of the heat from the fire, he
could not get past that room. Shirley Robison and Parks went back
to the Robisons’ house and called 911. Another man attempted to
search for Parks’s children as well, but was likewise unable to get
inside because of the intensity of the heat and smoke.
First responders arrived within minutes of the 911 call and
found the house fully engulfed. Like the two men earlier, police
officers were unable to enter the house. Firefighters extinguished
the blaze within about 10 to 15 minutes.
The remains of Parks’s three-year-old and 16-month-old
daughters were found in their bedroom at the southeast corner
5
of the converted garage. One was on a bed and the other in a crib.
The remains of Parks’s four-year-old son were found in a closet
in his bedroom at the northeast corner of the house. The children
had died from thermal injuries and carbon monoxide inhalation.
Parks’s husband was working a night shift and was not home at
the time of the fire.
William Franklin, a Los Angeles County Fire Department
investigator, began an investigation of the fire scene and took
photographs of the damage on the night of the fire, as well as
on three occasions thereafter. Less than two weeks later, Ronald
Ablott, a detective and member of the explosives and arson detail
in the Los Angeles County Sheriff ’s Department became the lead
investigator on the case. Ablott visited the scene of the fire twice in
April 1989 as well as sometime in late June or July 1989. At some
point during the investigation, Ablott became aware that the Parks
family had lived at the home destroyed in the Lynwood fire, which
Ablott had also investigated. Around late June or early July, Ablott
and Franklin began treating their inquiry regarding the Bell fire as
a criminal investigation.
2. Expert interpretation of burn patterns to
determine the Bell fire’s area or areas of
origin
Ablott and Franklin testified that there were two distinct
areas of origin for the fire: one in the north wall of the living room
and one in the southeast bedroom near the foot of the bed where
Parks’s daughter was found. 3 They reached this conclusion by
interpreting burn patterns in the home. Specifically, they testified
3 Ablott investigated the area of origin in relation to both the
living room and the southeast bedroom. Franklin investigated the
area of origin only in relation to the living room.
6
that, due to the way fire burns—starting low and then moving up
and outwards—a V-shaped burn pattern can point to the area of
origin for a fire, as can the area of greatest fire damage.
With respect to the living room point of origin, Franklin and
Ablott both testified that a V-shaped burn pattern and the locations
of the greatest areas of fire damage suggested an area of origin on
the north wall near the drapery hanging above the window. With
respect to the southeast bedroom, Ablott testified that a V-shaped
burn pattern coming from under the bed and the damage to the legs
of a chair that was near the foot of the bed pointed to a second point
of origin “on the floor near the edge of the bed.” Ablott believed that
these burn patterns showed the living room and southeast bedroom
fires were distinct—that is, that one did not cause the other.
Ablott and Franklin acknowledged that there could be other
explanations for the type of burn patterns on which they were
relying to identify the areas of origin, including “rollover,” “drop
down,” and “flashover” fires. Rollover occurs when the intensity
from the fire builds heat and smoke, and the heat and smoke hit
the ceiling and mushroom. Drop down occurs when a combustible
is superheated by items dropping from the ceiling to the floor.
A flashover fire occurs when radiation and heat build up inside a
closed space, heating the air inside of the space to a point when all
of the combustibles in the immediate area burst into flames. Ablott
and Franklin acknowledged that all three—rollover, drop down, and
flashover—affect burn patterns and can create false indicators of
an area of origin, including V-patterns and area of greatest damage.
But Ablott and Franklin testified that they had ruled out the
possibility of these phenomena explaining the burn patterns they
analyzed. They ruled out the possibility of a rollover fire as a
source of the V-patterns in either room by comparing the severity of
the damage at various points, and ruled out the possibility of a drop
7
down fire causing the V-pattern in the bedroom because of the
greater depth of char underneath the bed, an area that would have
been protected, had drop down occurred. Ablott concluded flashover
had not occurred, because there were items in the kitchen that had
not ignited, but that would have been fully consumed by fire, had
there been a flashover.
Ablott acknowledged that an “integral part” of his conclusion
that there were two separate areas of origin was his determination
that “no flashover occurred,” and that, if flashover had in fact
occurred, he would need to reassess the fire scene with this in
mind. He further testified, however, that he would still identify
the southeast bedroom as an independent area of origin, even if he
learned that flashover had in fact occurred.
The defense offered the expert testimony of private fire
investigator Robert Lowe to explain how Franklin and Ablott
misinterpreted the fire scene. Lowe opined that the investigators
had incorrectly concluded the burn patterns indicated multiple
areas of origin, and incorrectly identified the area of origin in the
living room. Lowe concluded that ventilation—specifically, fresh
air from the window, which had blown out during the fire—and
the burning drapery caused the V-shaped burn pattern in the
living room, and thus this pattern did not suggest an area of origin.
Lowe concluded that the damage at the foot of the bed in the
southeast bedroom was consistent with a drop down fire, rather
than a separate area of origin, and that Ablott had incorrectly ruled
this out. Lowe disagreed with Ablott regarding a second point of
origin in the southeast bedroom on the additional basis that, if a
fire had started there, he would have expected the box spring in
the southeast bedroom to have been reduced to flat steel, because
the mattress is built with very combustible material.
8
As had Ablott, Lowe explained that flashover can render burn
patterns an unreliable basis on which to opine about the origin of
the fire, because it can cause a V-pattern that does not indicate
a separate area of origin. Lowe concluded that precisely this had
occurred in the Bell fire and caused the V-patterns on which Ablott
and Franklin relied in their investigation. Lowe testified that the
southeast bedroom fire was an outgrowth of the living room fire,
caused by flashover from the living room fire, and that Ablott had
incorrectly ruled out flashover.
3. Evidence regarding the cause of the fire
Ablott and Franklin testified at trial that the Bell fire
was incendiary, meaning intentionally set by a person. Lowe
disagreed that the fire could be so classified and testified that
a malfunction on the television in the living room was a possible
cause of the fire. The prosecution and defense offered evidence
on the following issues relevant to these two competing theories
of causation: (1) expert testimony regarding whether the fire had
multiple points of origin, discussed above; (2) expert testimony
regarding a damaged electrical cord with curtains around it that
the prosecution argued was a failed incendiary device; (3) evidence
and testimony regarding whether the electrical appliances in the
home caused any part of the fire; and (4) evidence and testimony
relevant to whether the northeast bedroom closet in which Ronnie
was found had been barricaded shut.
a. Electrical cord and drapery
The investigators found an electrical cord in the living room
with clean cuts through its plastic insulation, exposing the copper
wire. The cord appeared to have been wrapped with fabric.
Dr. Robert Armstrong, a forensic electrical engineer examined
the cord by X-ray and microscope and testified that the insulation
9
had been sliced by a sharp object such as a knife. Another witness
for the prosecution, Captain Fuzzell, also testified that such precise
cuts were not consistent with damage that could have been caused
during the process of firefighter “overhaul,” meaning when
firefighters systematically dig through combustible material
after a fire, removing ash and debris in layers. More specifically,
Fuzzell testified that it would be highly unlikely for shovels used
in overhaul to create such cuts, and that overhaul would more likely
cause abrasions.
An electrical cord covered in fabric had been the source of
the Lynwood fire. Namely, investigators at the Lynwood fire scene
recovered a coiled extension cord covered in a large pile of clothes.
The extension cord was attached to an air conditioner. The
insulation of the wire had melted or burned away, and the clothes
had formed a large chunk of charcoal. Ablott—who was also an
investigator assigned to the Lynwood fire—had determined this
to be the area of origin for the Lynwood fire.
The forensic examination of the cord found in the Bell fire
revealed no evidence of electrical damage, however, meaning it
could not have actually started the Bell fire. Given the similarity
with the Lynwood fire source, however, the investigators concluded
that the cord was likely a crude, attempted incendiary device. The
prosecution stipulated that the Lynwood fire was accidental, but
argued that Parks learned about starting a fire in this way after
the Lynwood investigation.
Lowe disagreed with the prosecution’s witnesses about
the source of the cuts on the electrical cord. He believed shovels
firefighters used during overhaul could have caused the cuts in
the wire, although he acknowledged he had not examined the cord
closely. Lowe believed the drapes on the north wall in the living
room burned from the top down and fell to the ground, covering
10
the cord, and later becoming intertwined with the cord during the
overhaul process.
b. Electrical appliances as possible source of
fire and “negative corpus”
A television with a VCR, both on top of a wooden box with
a drawer, an electrical fan, two boxes of games, and some clothing
were located along the north wall of the living room. Parks had
purchased the fan and the VCR the day before the fire.
Ablott and Franklin testified that, during their investigation,
they ruled out these devices as possible causes of the living room
fire. Franklin examined the television, VCR, and fan—although
he acknowledged this was not an in-depth examination—and found
nothing suggesting they had been the source of the fire. Ablott
also examined the television, VCR and fan and concluded the burn
damage on these devices was inconsistent with any of them having
started the fire. Specifically, he noted that the television and fan
appeared to have been burned from the outside, not the inside,
as he would expect if a device malfunction had occurred. He also
explained that they could not be the source of the fire because they
were too far outside the area of origin.
Lowe disagreed with the investigators’ testimony and opined
that an internal malfunction in the television set in the living room
could have started a fire, which then spread to nearby drapes
and the rest of the house. The defense also offered the testimony
of Dr. Frederick Allen, an electrical engineer, who reviewed
photographs from the fire scene and concluded that the type
of television found at the scene was likely a Zenith model prone
to malfunction that could likely have caused the fire. Allen
acknowledged, however, that because the television had been
destroyed, it would be impossible to determine whether it was
in fact the cause of the fire. On rebuttal, the prosecution called a
11
former Zenith engineer, who testified that the television at the fire
scene did not appear to be the type that Allen indicated was prone
to malfunction.
In discussing how he had eliminated the appliances and
electrical cord and drapery as possible sources of the fire, Ablott
agreed when asked whether using this as a means to determine
the cause of the fire was a methodology referred to as “negative
corpus,” which Ablott clarified “mean[t] that you’ve eliminated
all accidental causes” and “[y]ou are left with the only thing that’s
there, the fire was caused by this.”
c. Northeast bedroom closet door
Ablott and Franklin determined that the door to the
northeast bedroom closet where Ronnie’s body was found had been
closed during the fire with a number of items blocking it, including
a laundry hamper. Because the closet door only opened outward,
they concluded this evidence supported that the child had been
barricaded in the closet. They viewed this as further circumstantial
evidence that the fire had been intentionally set.
The position of the closet door during the fire was the subject
of much expert testimony and debate at trial. Franklin took
pictures of the northeast bedroom before Ronnie’s body was found
(but after there had already been substantial disruption of the
scene by firefighters during overhaul), and these reflect the closet
door being open with no laundry hamper or any remnants of a
hamper near it. Based on a protected area of carpet in front of
the closet door, however—that is, an area in front of the closet door,
which appeared to be less burned than other areas—investigators
nevertheless concluded the door had been closed and barricaded
with a hamper during the fire. Through a reconstruction of the fire
scene, they matched certain items found in the home, including a
12
pet dish and the hamper, to the shape of the protected area in front
of the closet door. Their conclusion was also based on the condition
of Ronnie’s body when compared to the bodies of his siblings, the
burn patterns and relative burn damage on various parts of the
closet door and its hinges, and that there was less fire damage on
the inside of the closet than on the outside of the closet.
Lowe opined that the evidence was inconsistent with the
closet door being closed during the fire, or with items blocking
the door from the outside. Lowe based his opinion in part on a
comparison of the burn patterns found on the southeast bedroom
closet door and wall and those on the northeast closet door and
wall. Lowe explained that, had the northeast closet door been
closed (like the southeast bedroom closet door), the doors and walls
in both rooms would have had identical burn patterns, but instead
they displayed a “remarkable difference.” Lowe further based
his opinion on the fact that the shelf in the northeast closet was
missing and there were hangers on the floor. Lowe explained that
a fire that travels into an open closet typically destroys the shelf
supporting the hangers, causing everything on the shelf to drop
to the floor. Lowe also disagreed with Ablott regarding the burn
patterns on the hinges and the door frame, which, according to
Lowe, suggests the door had been open. Finally, Lowe offered
a competing interpretation of the burn patterns on the door,
testifying that they were consistent with the hamper sitting
alongside, not up against, the opened closet door. Lowe did not
indicate that his disagreement with Ablott regarding the position
of the northeast closet door was attributable to Ablott’s belief that
flashover had not occurred.
13
4. Evidence related to Parks’s physical state
Witnesses who were at the scene testified that, unlike others
who had approached the house during the fire, Parks did not have
physical signs of having been closely exposed to a fire, such as
a cough, or dirt or soot on her face. Some of these witnesses
acknowledged that they were not focused on Parks’s physical
appearance when they observed her. At least one witness testified
at trial without qualification that Parks was not dirty and did not
have a cough on the night of the fire. Some of these witnesses were
not asked about Parks’s physical state until a year after the fire.
Lowe opined that Parks’s apparent lack of exposure to heat
or smoke could be explained by “backdraft,” the same phenomenon
that allows one to stand in front of a fireplace without becoming
covered in smoke. Specifically, Lowe explained that air was flowing
out of the bedroom towards the fire in the living room, creating “a
draft from behind her as the air was drawn into the fire which was
[by then] . . . venting out the north wall of the living room.” This
“backdraft” phenomenon would have drawn the smoke away from
Parks when she opened the door. Because of this, Parks would not
necessarily have smelled of smoke or developed a cough. Lowe
further explained that when “you open a closed area that’s choked
with heat and venting . . . it pulls the air into it” and “creates . . .
a balance of fuel, heat and air, and you get a blast of heat,” in
response to which Parks “would [have] turn[ed] quickly” as a matter
of instinct.
5. Evidence related to Parks’s possible motive
The prosecution offered evidence that the Parks family
received or sought money as a result of both the Lynwood and
Bell fires. Specifically, Ronald Parks testified he and his wife
received about $1,000 in cash donations after the Lynwood fire
14
and approximately $30,000 cash in sympathy donations after the
Bell fire. Ronald Parks also testified that Parks had received a
$30,000 settlement offer regarding the Bell fire, but his testimony
is unclear whether he and Parks ever accepted that settlement.
The Parks family also initiated lawsuits over both fires, which they
dropped after Parks was criminally charged.
6. Primary prosecution and defense arguments
at trial
In arguing the case to the jury, the prosecutor emphasized
the circumstantial evidence that Parks had suffered no apparent
exposure to smoke or heat; that a failed incendiary device was
found in the Bell fire that appeared to employ a mechanism similar
to the cause of the Lynwood fire; and that the door to the northeast
bedroom closet was blocked during the fire. The prosecutor’s
closing arguments acknowledged that expert arson opinion evidence
“can be inconclusive,” and argued that the case had been proven
beyond a reasonable doubt even if the jury entirely discounted the
experts’ opinions on the origin and cause of the fire. For example,
the prosecutor argued that the wire and drapery evidence and
evidence of the northeast closet door being barricaded would alone
support a conclusion that the fire was deliberately set, regardless
of whether the jury believed the expert testimony offered by the
prosecution that there were multiple areas of origin.
The prosecution also argued that the defense theory about
the television starting the entire fire—and, more specifically,
Lowe’s expert testimony supporting that theory—was unpersuasive.
In so arguing, the prosecutor noted several times that the defense’s
theory being wrong did not prove the prosecution’s case, but rather
“reinforced” other evidence that was alone sufficient to prove guilt
beyond a reasonable doubt. In this context, the prosecutor critiqued
Lowe, in part based on Lowe’s opinions about flashover (at one
15
point calling him “flashover Lowe”), but also based on arguments
that Lowe had offered opinions beyond the scope of his expertise
(at one point calling him a “ ‘one man jury’ named Lowe”). The
prosecution’s closing arguments also focused on what it argued
was false testimony by Parks herself, arguing that impeaching
her on various points called her overall credibility into question.
Defense counsel argued that the evidence suggesting the
television caused the fire raised at least a reasonable doubt that
Parks intentionally burned down her house. Defense counsel also
argued, based on the physical evidence and Lowe’s opinions, that
the prosecution investigators’ conclusions about the closet door,
the attempted incendiary device, and a second area of origin were
wrong. And he argued that the absence of smoke or heat damage
to Parks was consistent with her statements regarding the events
of the night and the other evidence in the case.
C. Convictions and Procedural History Leading Up
to Habeas Petition
The jury convicted Parks on all counts and, after a penalty
phase, fixed the sentence for each murder at life without the
possibility of parole. This court affirmed the judgment, and the
California Supreme Court denied review. In 1999, this court denied
Parks’s first petition for writ of habeas corpus, which alleged her
conviction was based on insufficient evidence. (Parks v. Superior
Court (Mar. 11, 1999, B129951).)
On November 6, 2015, Parks filed another petition for
writ of habeas corpus in Los Angeles Superior Court, alleging her
conviction was based on false scientific evidence in violation of both
section 1473, subdivision (b) and Parks’s federal due process rights.
Parks argued that advances in fire investigation since the time of
trial undermined Ablott’s and Franklin’s testimony, rendering it
false testimony under section 1473, subdivision (e)(1). According
16
to Parks, a competently trained investigator would now be required
to classify the fire as “undetermined” rather than incendiary, and
Ablott and Franklin were only able to reach a contrary conclusion
by using investigatory methods that were tainted by bias and that
would not withstand scrutiny under fire investigation guidelines
developed since her trial. Parks also alleged that her due process
rights were violated because current fire investigation science and
best practices now make clear that Ablott’s and Franklin’s expert
testimony was false and unreliable, undermining the fairness of the
entire proceeding.
The court found that the petition was timely and stated a
prima facie case for relief, and, after receiving a formal return and
traverse, it ordered an evidentiary hearing.
D. Trial Court Evidentiary Hearing and Denial of
Parks’s Habeas Petition
The superior court conducted an evidentiary hearing on
Parks’s 2015 habeas petition in 2017 and 2018. 4
Each side presented three expert witnesses at the hearing.
Parks offered the testimony of Paul Bieber (defense expert Bieber or
Bieber), 5 Dr. Gregory Gorbett (defense expert Gorbett or Gorbett),
and David Smith (defense expert Smith or Smith). Bieber is a
former firefighter and arson investigator as well as founder and
director of the Arson Research Project, an organization devoted
to overturning wrongful arson convictions. He testified primarily
regarding the current state of fire investigation science and
4The court held approximately two hearing days each month
over the course of 10 months.
5 Given the number of experts, for ease of reference, we use
short form designations for each to indicate whether the witness
was offered by the defense or the prosecution.
17
guidelines. Smith is a private fire investigator, former police officer
and former public fire investigator. Smith opined on whether the
1989 Parks fire investigation was consistent with current fire
investigation science, guidelines, and best practices. Gorbett is
an associate professor of arson and explosive investigation and
private fire investigator, and has done significant published
research on the changes in fire pattern analysis. He testified
regarding fire dynamics and opined on the cause and point of origin
of the Bell fire.
The prosecution offered Brian Hoback (prosecution expert
Hoback or Hoback), James Lord (prosecution expert Lord or Lord),
and Edward Nordskog (prosecution expert Nordskog or Nordskog).
Nordskog is the lead arson investigator for the Los Angeles County
Sheriff ’s Department and one of approximately 40 people in the
country certified as a master investigator by the International
Association of Arson Investigators (IAAI). Hoback is a retired
Bureau of Alcohol, Tobacco, and Firearms (ATF) agent, current
ATF instructor, and private fire investigator. Lord is a university
instructor in fire dynamics as well and a private fire and forensic
engineer. All three prosecution experts (Nordskog, Hoback, and
Lord) opined on the cause and origin of the Bell fire.
These experts offered conflicting expert testimony regarding
virtually every key issue, including whether the original fire
investigation complied with current fire investigation science and
guidelines, whether there were multiple points of origin, whether
the northeast bedroom closet door was closed during the fire,
the significance of the damaged electrical cord and drapery, and
whether the fire could be classified as incendiary. All experts
agreed, however, that flashover had occurred in the living room,
southeast bedroom, and northeast bedroom, and that Ablott had
been incorrect in concluding otherwise. Still, whether the
18
occurrence of flashover and/or full room involvement undermined
the overall conclusions of Ablott’s and Franklin’s investigations was
another subject of disagreement between the prosecution and
defense witnesses, as we explain in more detail below.
1. Expert testimony regarding the current state
of fire investigation science and guidelines
a. NFPA 921
A key document capturing much of the new understanding of
fire investigation science on which Parks relies in her petition is a
publication by the National Fire Protection Agency entitled, “Guide
to Fire and Explosion Investigation,” commonly referred to as
“NFPA 921.” NFPA 921 was first published in 1992, and has been
updated every three years since then. According to the document
itself, “NFPA 921 is a peer-reviewed document describing the
methodologies and science associated with proper fire and explosion
investigations.” 6 “NFPA 921 brought together the best material
from each of ” the variety of “texts and treatis[es]” fire investigators
had used up until it was first published. The document is “a guide
that was slowly accepted by the fire-investigation community”
but was not broadly accepted until 2000. It sets out guidelines
and specifies that deviations from its guidelines do not necessarily
indicate that an investigation is improper, although an investigator
should be prepared to justify such deviations. 7 In addition to many
6 The 2017 edition of NFPA 921 is an exhibit to Parks’s
petition. All quotations from the document are to that version.
7 “This document is designed to produce a systematic,
working framework or outline by which effective fire and explosion
investigation and origin and cause analysis can be accomplished.
It contains specific procedures to assist in the investigation of
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other more specific guidelines, NFPA 921 codified the use of
the scientific method in fire investigations, advising that “[t]he
investigator does not have a valid or reliable conclusion unless
the hypothesis can stand the test of careful and serious challenge.”
Both defense and prosecution witnesses at the evidentiary hearing
testified regarding the contents and significance of NFPA 921.
b. Role of flashover, full room involvement,
and ventilation effects and burn patterns
According to defense expert Smith, over the past three
decades, a great deal of research has allowed fire investigators
to better understand a fire’s behavior in complex fire scenes.
Smith testified that burn pattern analysis—the primary method
used by fire investigators in determining the cause and origin
of a fire—is very subjective, and is often methodologically wrong
in a complex fire scene. According to Smith, fire investigators
did not truly understand or accept how flashover, full room
involvement, and a “ventilation[-]control[led] fire”—that is, one in
which all the fuel in a room has ignited and the oxygen entering
from doors and windows mixes with flames to create areas of high
heat—can affect burn patterns until well after Parks’s conviction.
Any of these phenomena can make it harder to accurately interpret
burn patterns. According to Gorbett, ventilation effects were
discussed as far back as the 1940’s, but they were not well
understood until 2008, when “the profession started looking very
seriously at it.”
fires and explosions. These procedures represent the judgment
developed from the NFPA consensus process system that if
followed can improve the probability of reaching sound conclusions.
Deviations from these procedures, however, are not necessarily
wrong or inferior but need to be justified.”
20
NFPA 921 addresses these issues, cautioning fire
investigators regarding the difficulties of accurately interpreting
burn patterns after there has been flashover, full room involvement,
or ventilation effects. As defense expert Bieber acknowledged,
however, NFPA 921 guidelines do not prohibit interpreting burn
patterns under such conditions. For example, NFPA 921 explains
that “[d]uring full room involvement conditions, the development
of fire patterns is significantly influence[d] by ventilation.” The
document explains that, in such a ventilation-controlled fire, the
fire damage is not always associated with a fuel package; the fire
is instead burning wherever it can get the right mixture of oxygen
to continue to burn. Thus, NFPA 921 cautions that when a fire
is ventilation-controlled, it becomes very complicated for a fire
investigator to determine whether damage is origin-related or due
to ventilation.
Bieber, Gorbett, and Smith testified that exercises conducted
since the time of the Bell fire also speak to the effects of flashover
and ventilation effects on burn pattern analysis. For example, in a
2005 exercise (published in 2008), 53 investigators and students—
only 20 of whom were fire investigators—were asked to determine
the quadrant where a fire originated in a room that burned for
one minute post-flashover (the Carman exercise). Only three of the
participants were able to correctly identify the quadrant where the
fire originated. Prosecution expert Hoback, however, described the
Carman exercise as one that does not “accurately predict real world
outcome[s],” and defense expert Smith acknowledged that the
Carman exercise and other similar exercises do not represent the
“typical scenario” or “typical fire scene investigation,” in that the
participants were limited in their ability to gather information from
other sources (such as by speaking with witnesses or moving items
at the scene), and that “its purpose was simply to bring to light the
21
challenges with fire pattern interpretation.” Parks apparently
conceded in her briefing below that the Carman exercise did not
accurately reflect a true error rate, and that it instead exposed
a “ ‘significant problem with determining a fire’s origin in a fully
involved, ventilation[-]controlled fire.’ ”
The ATF later replicated the Carman exercise. The ATF
burned three rooms, allowing each room to burn for different
amounts of time post-flashover (30, 60, and 180 seconds).
Between 30 to 35 experienced investigators participated in this
study. Although the findings were not published, investigators
believe only about five participants correctly identified the fire’s
origin. The significant finding in this study was that the longer the
fire was allowed to burn beyond flashover, the worse investigators
became at being able to identify the area of origin.
In a 2013 study published in the IAAI journal, 600
professional fire investigators with varying levels of experience
looked at a series of photographs of a room that burned post-full
room involvement, and asked them to identify the area of
origin. First the investigators were asked to identify the area
of origin without measurable data. Then, the photographs were
supplemented with measurable data. Prior to receiving the
measurable data, 74 percent of the participants correctly identified
the area of origin. The accuracy went up by only three percent after
the participants received measurable data.
As an exhibit to her most recent petition, Parks also offered
a 2019 study supporting that “ventilation changes fire damage and
fire patterns within a structure.” This study concluded, inter alia,
that pre-flashover burn patterns near exterior vents may be
eliminated completely and are more difficult to distinguish from
post-flashover damage.
22
c. Multiple areas of origin
NFPA 921 also contains “cautionary language” about
difficulty in identifying multiple areas of origin. Specifically, it
provides that “[m]ultiple fires are two or more separate, nonrelated,
simultaneously burning fires. The investigator should search to
uncover any additional fire sets or points of origin that may exist.
In order to conclude that there are multiple fires, the investigator
should determine that any ‘separate' fire was not the natural
outgrowth of the initial fire.” NFPA 921 provides several examples
of how separate fires may not be the result of “multiple deliberate
ignitions,” and notes that multiple points of origin become more
difficult to identify after full room involvement. NFPA 921
guidelines suggest that, when trying to determine an area of origin,
an investigator should consider: (1) witness information; (2) fire
patterns; (3) arc mapping; and (4) fire dynamics. According to
defense expert Bieber, under NFPA 921, an investigator should
ensure areas of origin that appear to be different are “entirely
separate and distinct,” since, especially after full room involvement,
outgrowths of a single fire can look like separate areas of origin.
d. Negative corpus
The NFPA 921 also discusses an investigative methodology
known as “negative corpus,” which the document defines as
determining the cause of a fire “that has no evidence to support it,”
based solely on ruling out all accidental causes within the area of
origin. According to Bieber, negative corpus had been an accepted
methodology in fire investigation at the time of the Bell fire,
but NFPA 921 rejected it “out of hand” in 2011. The publication
instructs that it is improper to infer the cause of a fire “that has
no evidence to support it even though all other such hypothesized
elements [have been] eliminated.” Because, under modern fire
23
investigation practices, the identification of an ignition source
should be based on data or logical inferences drawn from data, if no
such data or inferences support an ignition source and all accidental
causes have been eliminated, the fire should be classified as
“undetermined.”
e. Bias in fire investigation
The NFPA 921 cautions investigators to guard against
expectation bias and confirmation bias in an arson investigation.
Specifically, it provides that “[e]xpectation bias is a well-established
phenomenon that occurs in scientific analysis when investigator(s)
reach a premature conclusion without having examined or
considered all of the relevant data. Instead of collecting and
examining all of the data in a logical and unbiased manner to
reach a scientifically reliable conclusion, the investigator(s) uses
the premature determination to dictate investigative processes,
analyses, and, ultimately, conclusions, in a way that is not
scientifically valid. The introduction of expectation bias into
the investigation results in the use of only that data that
supports this previously formed conclusion and often results
in the misinterpretation and/or the discarding of data that does
not support the original opinion.” “Confirmation bias occurs
when the investigator relies exclusively on data that supports
the hypothesis and fails to look for, ignores, or dismisses
contradictory or nonsupporting data.” NFPA 921 does not
offer any recommendation about shielding investigators from
certain information and permits consideration of circumstantial
evidence to determine the classification of a fire. But NFPA 921
incorporates the scientific method into fire investigation,
specifically by admonishing that an investigator “does not have
24
a valid or reliable conclusion unless the hypothesis can stand the
test of careful and serious challenge.”
Defense experts testified regarding a 2017 American
Association for the Advancement of Science study discussing the
need to develop error rates in fire investigation and the impact of
potentially biasing information. The report comments “that studies
have shown that a fire investigator’s ability to determine the
correct origin of a post-flashover fire may be no better than random
chance.” The report also includes “a series of recommendations of
how to shield fire investigations from outside information [and] the
importance of separating criminal investigation from the forensic
domain of origin cause investigation.” No evidence suggested this
is the current standard for fire investigations, however.
2. Expert testimony regarding whether the
Parks investigation complied with current
fire investigation science and NFPA 921
guidelines
Defense expert Smith testified that the 1989 Bell fire
investigation did not conform to NFPA 921 guidelines or best
practices. Based on the trial testimony and photographs of the
scene, Smith estimated that Parks’s house was fully involved for
6 to 10 minutes, and that this, as well as flashover and ventilation
effects, prevented burn patterns or area of greatest damage from
providing a reliable basis for identifying the Bell fire’s area of
origin. Smith also did not believe that the effect of full room
involvement on determining the area of origin was understood at
the time of the investigation. Thus, according to Smith, Ablott’s
and Franklin’s interpretations of post-flashover, post-full room
involvement burn patterns from a ventilation-controlled fire as a
means of identifying the fire’s area of origin did not comply with
NFPA 921 or comport with modern fire investigation science.
25
Smith further opined that the original investigators also
had not properly examined and eliminated the potential electrical
sources of ignition under NFPA 921 guidelines, because they
had done so via a visual inspection, rather than by having
them examined by a qualified electrical engineer, as NFPA 921
recommends. Smith testified about the practice of “arc mapping,”
one of the best practices discussed in NFPA 921, a technique that
can point to an area of origin through an examination of electrical
circuitry. The original investigators did not do arc mapping in
assessing potential electrical sources of the Bell fire. They also
did not consider or eliminate various electrical wires in the house
as possible ignition sources.
Smith opined that the Parks investigation had also been
tainted by expectation or confirmation bias, because “the steps
weren’t followed that should have been followed in [NFPA] 921,”
such as “reconstructing the scene to make a determination of
what was there and items such as that throughout the case.”
For example, Smith testified that investigators showed bias in
determining that the northeast bedroom closet door was closed
and blocked during the fire because Smith thought it could not
be “scientifically indicated which way [the closet door] was.”
Contrary to defense experts’ testimony, prosecution expert
Nordskog testified that NFPA 921 did not substantially change
the methodology of fire investigation. He acknowledged that in
the previous 25 years fire scientists had contributed to a better
understanding of certain topics such as ventilation effects,
and had debunked some “obvious myths,” but viewed it as an
“exaggeration” to say that “a lot” of what investigators understood
before NFPA 921 was wrong. For example, the issue of bias has
long been acknowledged, and NFPA 921 simply amplified it.
26
Nordskog believed that Ablott’s methodology in investigating
the Bell fire was sound, even measured against current practices
and the NFPA 921 specifically. Ablott, who like Nordskog was
certified as a master investigator by the IAAI, reached a “reserved
opinion” via “a very slow and detailed process” that “was quite
detailed and deliberate.” Nordskog did not believe Ablott’s
investigation reflected that Ablott had “succumbed to any of
the issues that this industry was [plagued with]” at the time,
“[t]he most common [of which] is untrained investigators. I think
he was very well trained for his task and demonstrated it.”
Moreover, Ablott had an advantage over the experts reviewing
the investigation retrospectively, because he was able to examine
the scene personally. Nordskog summarized his assessment of
the original investigation, saying, “[I]t was a long time ago, and I
realize we have gotten better in our business. There are still huge
flaws in our business. So I expected to find significant errors
because I have looked at cases from that era from other agencies
and from my own in our era. I was shocked at the detail, length
and quality of the investigation.”
Prosecution expert Hoback similarly testified that neither
NFPA 921, nor any later scientific research, undermined the
analysis of the original investigators. He explained, for example,
that flashover and ventilation effects were known and understood
at the time of the Bell fire—and were addressed at the trial.
NFPA 921 merely memorialized best practices in this regard.
He also did not think that arc mapping was necessary in this case,
as it is generally most useful in fires where the structure has been
completely destroyed. Moreover, Hoback did not believe that
NFPA 921’s discussion of negative corpus was relevant, because
it cautions against determining that a fire was incendiary based
solely on a process of elimination. Here, Hoback testified, the
27
investigators had reached their conclusions based both on
eliminating potential accidental causes and on additional evidence
suggesting the fire was incendiary, such as the multiple areas of
origin and the blocked closet door. Hoback further testified that
Ablott had used the greatest area of damage as only one indicator
in determining the area of origin, which was consistent with
NFPA 921; that considering the presence of a failed incendiary
device in determining the cause of a fire likewise complied with
current best practices; and that Ablott’s approach to eliminating the
electrical appliances as potential sources of the fire was consistent
with NFPA 921 guidelines.
Finally, prosecution expert Lord likewise opined that
scientific research since 1989 had not undermined the original
investigators’ conclusions. He believed that investigators at
that time adequately understood the effects of flashover and
ventilation and the impropriety of employing pure negative corpus
methodology. For example, Lord pointed to a number of resources
predating the Parks fire discussing the significance of flashover and
ventilation, and noted that the calculations he used to analyze the
fire in this case have been accepted since the 1950’s and 1960’s.
3. Testimony regarding the cause and areas
of origin of the Bell fire
Defense expert Gorbett opined on the cause and area of origin
of the Bell fire. Gorbett believed that it was not possible to conclude
whether there were multiple areas of origin, and that the proper
classification of the Parks fire should be “[u]ndetermined” (rather
than incendiary). Gorbett concluded that, because the Bell fire was
ventilation-controlled and there had been full room involvement in
the kitchen, living room, and northeast and southeast bedrooms,
burn patterns and damage could not provide a reliable basis for
identifying the cause or origin of the fire. According to Gorbett,
28
under such circumstances, it “becomes very complicated for a fire
investigator to discriminate in his interpretation of what caused
the damage. Was it origin related or was it because of all of its
ventilation and better burning.” Gorbett acknowledged that “full
room involvement does not “obscure[ ] and eliminate[ ] everything”
one can deduce from a burn pattern, but rather “starts to make it
more difficult” and “then we add in the variables of the window[s]
and the big [air] flow paths . . . and we are going to start to see
it become more and more complicated.” Given these conditions,
Gorbett opined that the area of origin could not be narrowed any
further than the kitchen, living room, and northeast and southeast
bedrooms, and that “[w]e cannot scientifically determine there
were multiple fires” within that boundary or that there were not.
Gorbett also performed a Computational Fluid Dynamic
Simulation (CFD), based on which he further opined that the
evidence was inconsistent with the Bell fire having multiple areas
of origin. Gorbett explained the CFD approach included building
a geometry model of the Parks’s home, modeling fire growth
and size, and monitoring the heat transfer and temperatures
for comparison to the physical damage that occurred during the
fire. This simulation sought to “evaluate the governing physics
of the fire spread throughout the house,” “consider the alternative
hypotheses regarding one or multiple origins,” and “analyze
post-fire damage in comparison to the predicted heat transfer
from the various computer simulations to the physical evidence
from the Parks’[s] home.” Gorbett ran 50 simulations which
considered two hypotheses: (1) a single origin in the living room,
or (2) multiple origins with one origin in the living room and
the second origin in the southeast bedroom. Based on these
simulations, Gorbett opined that although the fire damage within
the structure appeared similar in both the single and multiple
29
origin hypotheses, “a single origin within the living room better
replicated the actual fire damage in the Parks’[s] home and better
correlated to the witness statements and timeline,” whereas
“[t]he multiple origin theory did not accurately reflect the witness
statements or the physical evidence after the fire.”
Gorbett disagreed that the level of fire damage to the
mattress in the southeast bedroom suggested an area of origin
in that room, because “[t]he single origin in the living room would
have caused the same degree of damage and loss of mass to the bed
in the southeast bedroom as that identified in the actual damage.”
According to Gorbett, the CFD findings regarding the damage to
the bed in a single origin fire “is contradictory to the conclusion
put forward by” prosecution experts Hoback, Lord, and Nordskog
at the evidentiary hearing.
Prosecution experts Hoback, Lord, and Nordskog each
independently concluded that there had been multiple points of
origin in the Bell fire, consistent with what Ablott had identified
in the original investigation: one in the southeast bedroom and one
in the living room. According to both Hoback and Lord, that there
had been flashover and full room involvement meant only that
an investigator needed to exercise more care in interpreting burn
patterns, not that these patterns could no longer reliably indicate
points of origin. Hoback and Lord both opined that the burn
patterns in the southeast bedroom showed an area of origin near
the foot of the bed that was “definitely” separate and distinct from
the one in the living room. Both disagreed with Gorbett that all
patterns in the southeast bedroom were the result of ventilation
effects. Hoback further agreed with Ablott that, although the fire
did appear to have spread from the living room to the southeast
bedroom, this was not the cause of the southeast bedroom fire.
30
Based on the multiple areas of origin, the presence of
what they viewed as a failed incendiary device, and evidence that
the northeast closet door had been blocked, Hoback, Lord, and
Nordskog each independently concluded that the Bell fire should
be classified as incendiary.
At the evidentiary hearing, the prosecution also offered
a 2016 declaration by Ablott, in which Ablott confirmed that he
was not recanting any of the opinions he offered at trial.
4. Evidence regarding the closet door
Defense expert Gorbett testified that Ablott and Franklin
incorrectly concluded that the northeast closet door had been closed
during the fire. Gorbett opined that the evidence did not permit
an investigator to determine one way or the other whether this
was the case, and there was “too much evidence that is inconsistent
with” that conclusion. He also specifically disagreed—as Lowe had
at trial—that the post-fire appearance of the hinges indicated the
door was closed. He further testified that the “protected area” in
front of the closet door, based on which Ablott and Franklin had
concluded the door was blocked by a hamper, could be explained by
hot gas layers moving down during the fire, debris falling in front
of the door during the fire, poor housekeeping, or ventilation flow
paths.
Prosecution expert Nordskog, by contrast, opined that there
was “clear physical evidence” that the closet door was blocked at
the time of the fire. For example, Nordskog specifically agreed with
the initial investigator’s conclusion that the condition of Ronnie’s
body—primarily that his hair remained intact—indicated that the
door was closed during the fire.
31
5. Testimony regarding the electrical cord and
drapery
Prosecution experts Hoback and Nordskog both concluded,
based on the forensic examination conducted at the time of trial,
that the cuts in the cord and the material wrapped around it could
not have been the result of overhaul, and that the cord had instead
been tampered with. They therefore viewed the electrical cord as a
failed incendiary device. The defense experts did not testify at the
evidentiary hearing regarding the source of the damage to the wire
or whether it was part of a failed incendiary device.
E. Superior Court Denial
After the evidentiary hearing, the superior court issued a
detailed written order rejecting Parks’s argument that Ablott and
Franklin had offered false expert testimony that warranted relief
under section 1473, subdivision (b), and denied the petition.
The court observed that Parks’s arguments regarding all the
allegedly false testimony except Ablott’s conclusion that flashover
did not occur “amount[ed] to nothing more than disagreeing with
Ablott’s conclusions, and attempting to re-litigate them before
th[e] court.” The trial court reasoned that Parks’s experts at the
evidentiary hearing had “echoed the defense theories at trial” but
had not shown that improved scientific understanding of things
like flashover and ventilation effects undermined the original
investigators’ conclusions. The court further concluded that
the record did not support that the experts’ conclusions were the
product of bias or improper negative corpus methodology. Instead,
the investigators had drawn logical inferences from the evidence
regarding the cut electrical wire, electrical appliances, and closet
door, and had done so in a manner Parks had not shown to be
undermined by subsequent scientific advances in fire investigation.
32
The court further concluded, however, that Ablott’s trial
testimony that flashover had not occurred was “false” within
the meaning of section 1473, subdivision (e)(1), since all of the
evidentiary hearing experts agreed that flashover had occurred.
But this testimony was not substantially material, the court
concluded, because the prosecution experts were able to read the
burn patterns despite the occurrence of flashover and they “still
confirmed all other aspects of the original investigation.” The
court did not separately address Parks’s due process claim.
F. Current Habeas Petition
Following the superior court denial, Parks filed her habeas
petition raising false evidence and due process claims with this
court. We summarily denied the petition, and Parks then filed
an original petition in the California Supreme Court raising the
same claims. (In re Joann Parks (Nov. 24, 2020, S258858).) The
Supreme Court issued an order to show cause returnable in this
Court. 8 The instant writ proceedings followed.
DISCUSSION
“Where, as here, the superior court has denied habeas corpus
relief after an evidentiary hearing (viz., the hearing held on the
order to show cause ordered in response to petitioner’s first habeas
corpus petition) and a new petition for habeas corpus is thereafter
presented to an appellate court based upon the transcript of
8While Parks’s petition was pending in the California
Supreme Court, Governor Gavin Newsom issued an order
commuting Parks’s sentence. Because Parks was in custody at
the time she filed her habeas petition, and remains in constructive
custody even after her release on parole, the habeas corpus
custody requirement is satisfied. (See In re Hernandez (2019) 33
Cal.App.5th 530, 542.)
33
the evidentiary proceedings conducted in the superior court, ‘the
appellate court is not bound by the factual determinations [made
below] but, rather, independently evaluates the evidence and
makes its own factual determinations.’ [Citation.]” (In re Resendiz
(2001) 25 Cal.4th 230, 249, abrogated on other grounds by Padilla
v. Kentucky (2010) 559 U.S. 356, 370.) However, “any factual
determinations made below ‘are entitled to great weight . . . when
supported by the record, particularly with respect to questions
of or depending upon the credibility of witnesses the [superior
court] heard and observed.’ ” (In re Resendiz, supra, at p. 249.)
Conclusions of law and resolution of mixed questions of fact and law
are subject to independent review. (See In re Cox (2003) 30 Cal.4th
974, 998.)
A. Section 1473, subdivision (e)(1) and False Expert
Testimony
Section 1473 permits “[a] person unlawfully imprisoned . . .
[to] prosecute a writ of habeas corpus to inquire into the cause
of the imprisonment or restraint” for various reasons. (§ 1473,
subd. (a).) Under section 1473, subdivision (b), a petitioner is
entitled to relief where he or she can prove, by a preponderance
of the evidence (In re Sassounian, supra, 9 Cal.4th at pp. 546−547),
that (1) “[f]alse evidence” was introduced against him or her at
trial, and (2) that the false evidence was “substantially material or
probative on the issue” of his or her guilt. (§ 1473, subd. (b)(1).)
1. Expert testimony under section 1473,
subdivision (e)(1)
In 2015, section 1473 was amended to clarify the
circumstances in which expert testimony may qualify as
“false evidence” under the statute. Following that amendment,
section 1473, subdivision (e)(1) provides that “ ‘false evidence’
34
includes opinions of experts that have either been repudiated
by the expert who originally provided the opinion at a hearing or
trial or that have been undermined by later scientific research or
technological advances.” (§ 1473, subd. (e)(1).)
The Legislature added this language following a California
Supreme Court decision, In re Richards (2012) 55 Cal.4th 948(Richards I), which held that, under the pre-2015 version of
section 1473, when “posttrial advances in technology have
raised doubts about [an] expert’s trial testimony” but have not
“conclusively prov[en] that testimony to be untrue,” the expert
testimony is not “ ‘false evidence.’ ” (Richards I, supra, 55 Cal.4th
at p. 952.) Justice Liu wrote a lengthy dissent in Richards I,
explaining his view that “there is no reason to treat expert
testimony differently from lay testimony under section 1473[,
subdivision] (b)” and that “ ‘false evidence’ within the meaning
of section 1473[, subdivision] (b) is established when a petitioner
shows by a preponderance of the evidence either the falsity of an
expert’s testimony or the falsity of an underlying fact essential
to an expert’s testimony.” (Richards I, supra, at p. 971 (dis. opn.
of Liu, J.).) Justice Liu’s dissent explains this alternative approach
is necessary in order to place expert testimony on equal footing with
percipient witness testimony under the statute, which does not
differentiate between the two: “Just as the truth or falsity of
eyewitness testimony under section 1473[, subdivision] (b) depends
on the truth or falsity of underlying facts concerning the witness’s
perceptual abilities, the truth or falsity of expert testimony depends
on the truth or falsity of underlying facts essential to the expert’s
inferential method and ultimate opinion.” (Richards I, supra, at
p. 973 (dis. opn. of Liu J.).)
“[I]t is apparent that the Legislature agreed with the dissent’s
conclusion” in this regard, and that the 2015 amendment was
35
intended to assure courts “treat lay and expert opinion equally
in determining whether the testimony of an expert witness at
trial satisfies the false evidence language of section 1473.” (In re
Richards (2016) 63 Cal.4th 291, 311 (Richards II).) The legislative
history of the amendment reflects that the Legislature specifically
agreed not only with this conclusion of the Richards I dissent, but
with the dissent’s reasoning as well (ibid.)—namely, that both lay
and expert testimony may be repudiated, and that “underlying facts
essential to the expert’s inferential method and ultimate opinion,”
just like “underlying facts concerning [a lay] witness’s perceptual
abilities,” may be objectively disproven. (Richards I, supra, 55
Cal.4th at p. 973 (dis. opn. of Liu, J.).)
Following the 2015 amendment, Richards filed a new writ
petition that again made its way to the California Supreme Court.
The Court concluded that the expert testimony at issue met the
definition of false evidence under newly-minted section 1473,
subdivision (e)(1). At trial, the expert had opined, based on a
photograph of a lesion on the victim’s body and Richards’s dental
records, that the lesion was a bite mark matching Richards’s unique
dentition, and that this dentition was shared with approximately
one or two percent of the population. (Richards II, supra, 63
Cal.4th at p. 305.) Years later, technology not available at the time
of trial was used to correct an angular distortion in the photograph,
and based on this corrected photograph, all experts testifying at
the habeas hearing—including the original testifying dental expert
himself—“exclude[d] petitioner’s teeth as the source of the lesion.”
(Id. at p. 310, italics added.) In addition, the original testifying
expert acknowledged that he had no scientific basis for his initial
estimate of the number of individuals who shared Richards’s
dentition. The Supreme Court concluded that Richards had
established the expert’s testimony was false evidence under both
36
of the categories described in section 1473, subdivision (e)(1): The
expert had repudiated the testimony, and an essential factual basis
for the testimony—the accuracy of the photograph—had been
undermined by advances in technology. (Richards II, supra, at
pp. 309−310.)
Thus, in order for expert testimony to be false under
section 1473, subdivision (e)(1) and Richards II, unless the expert
repudiates the testimony, the petitioner must show that
“ ‘underlying facts essential to the expert’s inferential method
and opinion’ ” no longer support that method or opinion in light
of new scientific understanding or technology. (Richards II, supra,
63 Cal.4th at p. 311 [discussing 2015 amendment and quoting
Sen. Rules Com. Off. of Sen. Floor Analyses, Unfinished Business
Analysis of Sen. Bill No. 1058 (2013−2014 Reg. Sess.) as amended
June 4, 2014, p. 3.)
2. Substantial materiality
After establishing that false evidence was presented at trial,
a habeas petitioner seeking relief under section 1473, subdivision
(b) must also show that the evidence was “substantially material or
probative” on the issue of his or her guilt. (§ 1473, subd. (b)(1).) In
determining whether this is the case, “the crucial question is . . .
not whether, without the false evidence, there was still substantial
evidence to support the verdict” (Richards II, supra, 63 Cal.4th
at p. 312), but rather whether the false evidence is “of such
significance that with reasonable probability it may have affected
the outcome of the trial.” (In re Wright (1978) 78 Cal.App.3d 788,
814 (Wright).) It is insufficient, however, for a petitioner to show
that the false testimony was merely “relevant to a material issue
and that the true facts would have been helpful to the defense” (id.
at p. 809); he or she must instead establish “ ‘ “there is a ‘reasonable
37
probability’ that, had [the false evidence] not been introduced,
the result [of the trial] would have been different.” ’ ” (Richards II,
supra, at p. 312; In re Roberts (2003) 29 Cal.4th 726, 742.) “ ‘The
requisite “reasonable probability,” . . . is such as undermines the
reviewing court’s confidence in the outcome’ ” and “ ‘is dependent
on the totality of the relevant circumstances.’ ” (In re Malone (1996)
12 Cal.4th 935, 965.)
B. Ablott’s and Franklin’s Conclusions Regarding
the Cause and Origins of the Fire Do Not
Constitute False Evidence
Parks argues that Ablott’s and Franklin’s overall conclusions
regarding the cause and area of origins of the Bell fire—namely,
that the fire had multiple areas of origin and was incendiary—
constitute false evidence in two related respects. We disagree as
to both, for reasons we set forth in turn below.
1. The absence of flashover is not an essential
basis for the investigators’ conclusions that
the fire was incendiary
All experts now agree Ablott was wrong in concluding that
flashover did not occur anywhere in the home. Parks argues
that, because Ablott’s and Franklin’s analyses of the fire scene
were based on this (now known to be likely incorrect) conclusion
regarding flashover, their ultimate conclusions that the fire was
incendiary constitute false evidence. We disagree.
Ablott and Franklin concluded that the fire was incendiary
based in part on Ablott’s interpretation of the fire scene as
reflecting multiple points of origin. Ablott acknowledged that
this interpretation of the fire scene was based in part on
an understanding that flashover did not occur. He further
acknowledged that, were he to learn flashover had in fact occurred,
38
he would want to reassess the fire scene with that in mind. But
both Ablott and three experts testifying at the evidentiary hearing
concluded that, even taking into account that flashover had
occurred, each would still conclude the fire was incendiary and had
multiple points of origin. The current state of fire investigation
science reflected in the evidence Parks has presented does not
prohibit concluding a fire had multiple areas of origin based on
post-flashover burn patterns—it merely cautions the investigator
to be aware of the potentially misleading effects flashover, full room
involvement, and ventilation can have on those patterns when
interpreting them. Three prosecution experts who testified at the
evidentiary hearing did just that, and still agreed with the original
investigators’ ultimate conclusion regarding the cause and origin
of the Bell fire.
Parks’s experts at the evidentiary hearing disagreed that
the burn patterns could still provide a reliable basis for identifying
multiple points of origin. But this establishes only that two sets
of experts can reasonably reach differing opinions as to whether a
fire investigator can use post-flashover burn patterns as a basis for
identifying multiple points of origin in a ventilation-controlled, full
room involvement fire. Such difference of opinion does not establish
that the current science of fire investigation prohibits or even
significantly undermines a resulting identification of multiple
points of origin. 9 Indeed, fire investigation science is not a “pure
9 Our conclusion in this regard is further bolstered by the fact
that the trial court relied on the ongoing debate between experts at
the evidentiary hearing regarding the interpretation of the Bell fire
scene to deny Parks’s petition, and in so doing implicitly concluded
that no one expert or set of experts is more credible than the other.
Because we give great deference to the trial court’s credibility
39
forensic science,” but rather, as defense expert Bieber testified,
involves “subjective” interpretation that distinguishes it from
“true scientific measure.” Therefore, reasonable, qualified fire
investigators may have “different interpretations of certain things,”
and investigators disagree about evaluating a fire scene “everyday.”
Thus, Parks has failed to establish by a preponderance of
the evidence that, by current standards, it is improper to interpret
post-flashover burn patterns, such that Ablott’s incorrect conclusion
regarding flashover was necessarily an “underlying fact[ ] essential
to [his] inferential method and ultimate opinion” that the burn
patterns in the Bell fire reflected multiple points of origin. (See
Richards I, supra, 55 Cal.4th at p. 973 (dis. opn. of Liu, J.).)
Moreover, even if Ablott’s incorrect conclusion regarding
flashover did undermine his conclusion that there were multiple
points of origin, the multiple points of origin were not the only basis
for his and Franklin’s opinion that the Bell fire was incendiary.
They also based that opinion on the presence of what they viewed
as a failed incendiary device similar to the cause of the Lynwood
fire, on having ruled out the electrical appliances as potential
sources of the fire, and on their conclusion that the closet door had
been closed and barricaded during the fire. NFPA 921 permits
reliance on such circumstantial evidence in classifying a fire. And
as noted above, ongoing expert debate at the evidentiary hearing
regarding whether the circumstantial evidence in this case supports
such a classification does not render that classification false
evidence under section 1473, subdivision (b). Thus, even if Ablott’s
determinations (In re Resendiz, supra, 25 Cal.4th at p. 249), we
decline, as Parks implicitly asks us to do, to conclude that the
prosecution’s experts at the evidentiary hearing were wrong or
less credible than the experts offered by Parks at the evidentiary
hearing.
40
conclusion that flashover did not occur were an essential factual
predicate to his conclusions regarding multiple points of origin,
it would not be an essential factual predicate to his and Franklin’s
overall conclusion the fire was incendiary. Ablott’s conclusion
regarding flashover is thus not “akin to [a] perceptual premise
of . . . eyewitness testimony shown to be false.” (Richards I, supra,
55 Cal.4th at p. 974 (dis. opn. of Liu, J.).)
Parks argues that her situation is similar to that present
in Richards II, because the expert in that case was interpreting
something (a photograph) later determined to be other than what
the expert initially believed (i.e., an accurate depiction of a lesion on
the victim). Parks argues that this is comparable to Ablott opining
on the source and cause of the Bell fire by interpreting what Ablott
believed to be a fire scene unaffected by flashover, a belief now
known to be likely incorrect. But a crucial difference between
the photograph determined to be inaccurate in the Richards cases
and the conclusion here regarding flashover is that, without the
photograph in the Richards cases accurately depicting the lesion,
no basis remained on which the expert could have concluded that
the lesion matched the defendant’s dentition, because there was
no other evidence regarding what the lesion looked like. Thus,
the photograph was “crucial” to the expert’s ultimate opinion.
(Richards I, supra, 55 Cal.4th at p. 974 (dis. opn. of Liu, J.) [“[a]
crucial fact underlying all of [dental expert’s] testimony was that
the single photograph of the victim’s hand was alone a sufficient
basis for reaching his ultimate conclusion”].)
In his dissent in Richards I, Justice Liu contrasted this with
a situation like the one here, noting that “[t]here will no doubt be
cases where it is more difficult to determine whether the falsity of
one or more facts underlying an expert’s trial testimony renders the
entire opinion false. In many cases, an expert opinion may be based
41
on a variety of facts, and the falsity of one fact might not undermine
the expert’s ultimate conclusion.” (Richards I, supra, 55 Cal.4th
at p. 975 (dis. opn. of Liu, J.).) The record amply supports that this
is the case here.
2. Advancements in fire investigation science
do not render Ablott’s and Franklin’s
opinions that the Bell fire was incendiary
false evidence
Parks also argues that general advances in fire science and
fire investigation methodology since trial fatally undermine Ablott’s
and Franklin’s overall analyses of the Bell fire scene, and that
it is impossible to conclude, consistent with current science and
methodology, that the Bell fire had multiple points of origin and/or
that the fire was incendiary. She argues that the investigators
were only able to reach this conclusion because they employed
improper negative corpus methodology, and because their
investigation was infected by confirmation and expectation bias.
On these bases, she argues that Ablott’s and Franklin’s ultimate
opinions that the Bell fire was incendiary constitute false evidence.
Parks’s argument relies on numerous different aspects of
modern fire investigation science she argues reflect the type of
“later scientific research or technological advances” referred to in
section 1473, subdivision (e)(1). We address each in turn below.
a. Increased understanding of the role of
flashover and ventilation in burn patterns
and determining multiple areas of origin
First, Parks points to the increased understanding of and
guidance regarding the effects of flashover and ventilation on
burn patterns, and how these factors can render post-flashover
burn pattern analysis, particularly in a ventilation-controlled
fire, unreliable. Parks notes that “[i]t is now well understood that
42
factors such as flashover, full room involvement, and ventilation
can cause the appearances of or erase patterns of multiple fires
in a compartment.” She points to NFPA 921’s “direct[ion] [that]
an investigator consider[ ] these factors when there is a possibility
of multiple origins,” and argues that Ablott’s and Franklin’s
application of “pre-flashover, pre-full room involvement
methodologies” to opine that there were multiple areas of origin
in the Bell fire is “not scientifically defensible” under current
standards.
This argument overlaps with the underlying premise of
the argument we address above regarding Ablott’s opinion that
flashover did not occur, and how that opinion affected his overall
conclusions regarding the Bell fire. As we noted in discussing that
argument, the evidence Parks has offered does not establish that
interpreting post-flashover burn patterns or burn patterns in
a ventilation-controlled fire is impermissible under current fire
investigation science and best practices. Nor does it establish
that doing so as a means of identifying multiple areas of origin is
a necessarily flawed methodology. Rather, the studies and other
authority in the record reflect that modern fire investigation science
more fully understands what both the defense and prosecution
experts acknowledged at trial: that flashover, full room
involvement, and ventilation effects make reading burn patterns
difficult, and that a fire investigator should keep these factors in
mind and exercise caution in interpreting a fire scene, because
they may otherwise create false indicators of an area of origin.
We acknowledge that Parks’s experts at the evidentiary
hearing went beyond the express words of these studies
and authorities and opined precisely as Parks argues in her
petition: that interpreting post-flashover burn patterns in a
ventilation-controlled fire is a fatally flawed methodology under
43
modern fire investigation standards, and that Ablott’s and
Franklin’s ultimate conclusions thus cannot stand in light of
current scientific understanding. But NFPA 921—which Parks
touts as “articulat[ing]” the “gold standard” for fire investigation—
does not include the more extreme interpretation of current
standards reflected in the defense experts’ testimony. Moreover,
for each defense expert espousing this view at the evidentiary
hearing, there was at least one prosecution expert offering the
opposite view. As noted above, that reasonable experts disagree
about the appropriateness of interpreting post-flashover burn
patterns does not establish that doing so renders the resulting
opinion “false evidence” under section 1473, subdivision (e)(1).
Indeed, the continuing expert debate at the evidentiary hearing
here is in stark contrast with Richards I and Richards II, in which
“all [of the] experts testified that the photograph did not provide
a sufficient basis for [the dental expert] to conclude at trial that
the lesion was a bite mark consistent with petitioner’s teeth.”
(Richards I, supra, 55 Cal.4th at p. 975 (dis. opn. of Liu, J.),
italics added.) Justice Liu found this unanimity of the experts
at the evidentiary hearing significant in concluding Richards had
established the dental expert testimony was false evidence, noting
that Richards’s case “[was] not a case in which a habeas corpus
evidentiary hearing has devolved into a fresh battle of the experts.”
(Ibid., italics added.) Precisely such a battle occurred at the
evidentiary hearing in this case.
Finally, we find unpersuasive Parks’s argument that, given
the lack of research on the error rates of post-flashover burn
pattern analysis at the time of trial, the prosecution experts
“grossly misinterpreted to the jury their ability to properly analyze
the [burn] patterns and come to accurate conclusions regarding
the origin, cause, and classification of the fire.” According to Parks,
44
Ablott and Franklin were free to opine with absolute certainty
regarding the cause and origin of the Bell fire, something they could
not do today, given the additional studies on error rates in burn
pattern analysis, and because such opinions would be inconsistent
with “current practices.” But current science and practices would
not prevent an expert today from offering the same “definitive[ ]”
conclusions reached by Ablott and Franklin, because none of the
scientific articles, studies or standards Parks identifies prohibits
an expert from interpreting post-flashover burn patterns in a
ventilation-controlled fire. Indeed, at the evidentiary hearing,
three well-qualified experts concluded they could (and did) do
just that. Moreover, at Parks’s trial, both prosecution and defense
experts testified “unequivocal[ly]” about their interpretation of the
fire scene, and neither side’s expert testimony went unchallenged.
True, Parks could not challenge Ablott’s and Franklin’s opinions
with studies available today that attempt to quantify the error
rates of burn pattern analysis. But it is simply not true that
the jury “was presented with no scientifically supported alternate
explanations to challenge the prosecution’s experts.” The key
concept underlying such a challenge—that flashover and ventilation
can affect burn pattern analysis and create false indicators of an
area of origin—was recognized in some form at the time of Parks’
trial and discussed in expert testimony presented by both sides at
trial. Indeed, qualified experts on both sides at the 2017/2018
evidentiary hearing reached largely the same conclusions as their
counterparts at trial had decades earlier, and for largely the same
reasons. Advances in fire science available today would have
provided more fodder for the defense in this debate at trial—for
example, studies that attempt to quantify a specific error rate in
what both sides acknowledge is an inherently subjective discipline.
45
But this is insufficient for the expert trial testimony to qualify
as false evidence under section 1473, subdivision (e)(1).
People v. Johnson (2015) 235 Cal.App.4th 80 (Johnson)
is instructive on this point. In Johnson, the defendant had been
civilly committed as a sexually violent predator based on a
prosecution expert diagnosing him with a paraphilic coercive
disorder. (Id. at p. 85.) At trial, the defense experts “disagreed
with the state’s experts about Johnson’s diagnosis[,]” testifying that
“although it can be a valid diagnosis, paraphilic coercive disorder
is very rare” and “is controversial within the scientific community.”
(Id. at p. 86.) Defense experts at trial further opined that Johnson
did not even have the disorder. (Ibid.) In a habeas petition,
Johnson sought relief under section 1473, subdivision (e)(1), based
on paraphilic coercive disorder having since been removed from
the Diagnostic and Statistical Manual of Mental Disorders (DSM).
The court denied the petition, explaining that, although this
change in the DSM “may cast additional doubt on the validity
of ” Johnson’s diagnosis (id. at p. 89) and “might have bolstered
Johnson’s arguments if introduced at trial” (id. at p. 92), it
“[did not] completely undermin[e] the state’s case” or “reflect[ ]
scientific research that undermines expert testimony diagnosing
that disorder and renders that testimony false evidence.” (Id.
at pp. 90−91.) Parks attempts to distinguish Johnson based on
the validity of Johnson’s diagnosis having been “fully litigated at
Johnson’s trial” and Johnson having been “able to cross-examine
[the prosecution’s] experts and present the testimony of his own
experts.” (Id. at pp. 91–92.) Parks argues that, unlike in Johnson,
the evidence she offers to support her petition does not “simply
elaborate[ ] upon the testimony of . . . experts below” (id. at p. 91),
because, unlike in Johnson, the relevant issue “was not fully
litigated; the jury was misled to disbelieve flashover had occurred,
46
[and] did not get the full explanation of the effects of flashover,
full room involvement, or ventilation.” (Italics omitted.) But this
is a question of degree. The potential for flashover to incorrectly
suggest an area of origin was unquestionably acknowledged by both
prosecution and defense experts at Parks’s trial. In addition, Lowe
challenged Ablott’s conclusion that flashover had not occurred, as
well as Ablott’s ability to interpret post-flashover burn patterns.
Thus, additional scientific understanding about the effect of
flashover on burn patterns that Parks identifies, as well as the
consensus in recent expert testimony that flashover did occur,
merely elaborates on an issue litigated below—albeit perhaps more
so than was the case in Johnson.
b. Negative corpus
Parks further argues that Ablott and Franklin employed a
“negative corpus” methodology in determining the cause of the fire,
which NFPA 921 does not permit. But NFPA 921 defines improper
negative corpus methodology—as opposed to the acceptable process
of elimination reasoning that Parks acknowledges is part of the
scientific method—as determining the cause of a fire when there
is “no evidence to support it [the cause],” and thus based solely on
ruling out all accidental causes. The record does not reflect that
the investigators did this in determining the cause of the Bell fire.
True, Ablott agreed when asked whether he employed “negative
corpus” methodology and whether he concluded the fire was
incendiary based on ruling out other sources. But his further
testimony regarding additional bases for his conclusion that the
fire was incendiary belies any argument that he employed a “pure”
negative corpus methodology of the type rejected in NFP 921.
The record reflects that he and Franklin instead relied on their
interpretation of multiple pieces of evidence to reach that
47
conclusion—namely, the cut electrical cord, closet door, and burn
patterns. Parks criticizes Ablott’s and Franklin’s interpretations of
this evidence as reflecting, respectively, a failed incendiary device,
barricaded closet door, and multiple areas of origin, arguing that
the evidence is more consistent with innocent explanations than
with a conclusion that the Bell fire was set by human hand. But
Parks’s criticisms of the way the investigators interpreted evidence
do not establish that the investigators had no evidentiary basis
for concluding the fire was incendiary, other than the exclusion
of accidental sources. Thus, even if Parks’s criticisms have merit
(which we do not conclude), they would not establish that the
investigators engaged in improper negative corpus methodology.
c. Expectation and confirmation bias
Finally, Parks argues that current guidelines recognize
the risks of investigator expectation and confirmation bias in fire
investigation, and that Ablott’s and Franklin’s investigations of
the Bell fire were tainted by such bias. The fundamental premise
of Parks’s argument appears to be that the investigators ignored
evidence that pointed towards innocent explanations for the Bell
fire in an effort to confirm a suspicion—which arose after learning
Parks’s previous home had burned down—that she had started
the fire. Parks argues that the evidence the investigators relied
on to support this conclusion is more consistent with these innocent
explanations than with their conclusion of arson at Parks’s hand.
She further notes that Ablott and Franklin initially viewed the Bell
fire as likely accidental, and only changed their views after learning
that Parks had been involved in a previous home fire.
Significantly, neither NFPA 921 nor any other source cited
by Parks requires or suggests specific protocols or practices in order
to shield an investigation from such expectation or confirmation
48
bias—let alone any practices that were not followed in the original
investigation. Although defense expert Bieber suggested bias could
be minimized by restricting the scope of a fire investigation to
determining the origin and cause of a fire, leaving the classification
of the fire (i.e., as intentional, accidental, or undetermined) to police
officers or insurance adjusters, he acknowledged that this is neither
industry practice nor required by NFPA 921, and the other defense
experts at the evidentiary hearing expressly disagreed with his
suggestion. The NFPA 921 expressly permits consideration of
circumstantial evidence to determine the classification of a fire,
as Ablott and Franklin did here.
Moreover, although current fire investigation methodology
certainly recognizes the risk of confirmation and expectation
bias in fire investigations, we agree with the trial court that these
“are not at all new phenomena and were known when the original
investigation occurred. Thus, this is not a matter of new science
discrediting old science, but rather a dispute as to the propriety
of Ablott’s investigation.”
Finally, even assuming a critique of the original investigation
as reflecting bias can properly form any basis for habeas relief
in connection with a false evidence claim under section 1473,
subdivision (b), Parks has not made the necessary showing
to establish confirmation or expectation bias in the original
investigation by a preponderance of the evidence. The record
does not support that Ablott interpreted the evidence in a manner
driven by bias, as opposed to driven by logical inferences drawn
from available facts and evidence. That Parks (and the experts
she offered at trial and the evidentiary hearing) disagree with
the inferences Ablott drew does not render them illogical or the
product of bias. For example, Parks faults Ablott for dismissing
the possibility that the cuts in the electrical cord could have been
49
made during overhaul, as opposed to by human hand. But
a forensic engineer testifying at trial examined the cord and
concluded it had been cut with a knife or sharp object, something
that could not be accomplished by a shovel damaging it during
overhaul. There is nothing unreasonable about Ablott relying on
this forensic examination and concluding that the cord was part
of a failed incendiary device—particularly given the cause of the
Lynwood fire, which had been explained to Parks. Moreover, at
trial, Lowe offered an alternative explanation for the cuts in the
wire (that they were the result of overhaul), which the jury was
free to consider. Similarly, defense and prosecution experts offered
competing interpretations of the evidence related to the northeast
closet door. Parks’s view that one of multiple interpretations of the
evidence presented to the jury is better or more plausible does not
support the conclusion that the investigator’s interpretation must
have been driven by bias. 10
10 The amicus brief filed by the Innocence Network argues
that Parks’s conviction also “raises troubling issues regarding
the prosecution’s use of bias against female criminal defendants.
Throughout their closing arguments, the [s]tate made numerous
prejudicial comments concerning Parks’[s] lack of serious injury
resulting from the fire, her lack of ‘maternal instincts,’ and her
general demeanor, as indications of her guilt.” Such comments
are not a basis for concluding any false evidence was offered
against Parks that might entitle her to relief under section 1473,
subdivision (b), however. And even assuming that some of these
comments were improper, the record does not support that these
comments had such an effect on the overall trial as to render
it fundamentally unfair and thus a violation of her right to due
process.
50
C. Ablott’s Testimony That Flashover Did Not Occur
Is False Evidence, But Is Not Substantially
Material to Parks’s Conviction
We agree with the trial court that Ablott’s conclusion
flashover did not occur in the Bell fire was false evidence under
section 1473, subdivision (e)(1), because all experts at the
evidentiary hearing concluded that flashover did occur.
But in order for the introduction of such false evidence
to warrant relief on her petition, Parks must establish by a
preponderance of the evidence that it is “reasonabl[y] probab[le]”
that, had Ablott’s flashover testimony “ ‘ “not been introduced, the
result [of the trial] would have been different.” ’ ” (Richards II,
supra, 63 Cal.4th at p. 312.) She has not done so.
First, for the reasons discussed above, there is not a
reasonable probability that, without Ablott’s conclusion that
flashover had not occurred, Ablott would have reached a different
ultimate opinion on whether there were multiple areas of origin
and/or whether the fire was incendiary. Second, the prosecution
acknowledged at trial that arson investigation evidence “can be
inconclusive,” and argued at trial that, even if one were to ignore
expert testimony interpreting the burn patterns as reflecting
multiple areas of origin, the remaining evidence presented
established guilt beyond a reasonable doubt. Specifically, the
prosecution cited testimony and forensic evidence suggesting
the electrical cord was part of a failed incendiary device; the
fact that Parks’s previous home had burned down as a result of
a mechanism similar to that apparently employed in the failed
incendiary device; evidence suggesting the northeast bedroom door
had been barricaded during the fire; and the condition of Parks’s
physical person the night of the fire, which the prosecution argued
was inconsistent with her claim that she attempted to save her
51
children. The prosecution’s interpretation of this evidence did not
depend on Ablott’s conclusion that flashover did not occur. 11 Parks
argues forcefully that the evidence on each of these points is open
to an alternative interpretation that does not suggest Parks is
guilty. But the jury was presented with essentially these same
alternative interpretations—including through an expert witness
(Lowe). The fact that, were the case to be tried today, the defense
could present these same critiques with more force than it did
at the original trial by drawing on additional scientific study and
technology not available then is insufficient to support a reasonable
probability that such fortification would change the outcome of the
trial. (See Wright, supra, 78 Cal.App.3d at p. 809 [habeas petition
must show “more than . . . that the true facts would have been
helpful to the defense” on a material issue].)
Parks stresses that the standard governing the requisite
effect of the false evidence is not one looking for mere substantial
evidence to support the verdict, absent the challenged evidence,
but rather one looking to whether the false evidence prejudiced
Parks at trial. (See Richards II, supra, 63 Cal.4th at p. 312.) We
agree. But the standard does not require just any amount or type
of prejudice; rather, it requires Parks to show, by a preponderance
of the evidence, a “ reasonable probability” that the outcome of
11 In her briefing and petition, Parks repeatedly cites portions
of the prosecutor’s closing argument that criticize Lowe for focusing
on flashover to rebut Ablott’s and Franklin’s opinions. Parks
suggests that this reflects how central a lack of flashover was to
the prosecution’s case. But the prosecutor made these arguments
during a portion of his closing that he explained was aimed solely
at rebutting the version of events Parks had offered, and repeatedly
noted that such rebuttal did not relieve the prosecution of its duty
to prove guilt beyond a reasonable doubt.
52
the trial would have been different. (Ibid.) Given the state of the
evidence set forth above and in the factual summary, we cannot say
that she has done so.
A comparison with the facts and procedural history leading
up to Richards II is again informative here. In that case, there
had been two hung juries before Richards was ultimately convicted
in a third trial. “The main difference between the two trials ending
in hung juries and the final trial ending in a guilty verdict was
the bite mark evidence”—that is, the subject of the dental expert’s
testimony—“which was offered only at the final trial.” (Richards I,
supra, 55 Cal.4th at p. 981 (dis. opn. of Liu, J.).) Here, there is
no such procedural history suggesting that Ablott’s conclusion
regarding flashover was a deciding factor in classifying the fire
as incendiary—let alone a deciding factor in identifying Parks
as the source of the fire. In addition, in the Richards trial, “[t]he
purported bite mark was the evidence that most directly linked
petitioner to the crime.” (Ibid.) The same cannot be said even for
Ablott’s conclusion that flashover did not occur.
Parks counters that to conclude expert fire scene analysis and
opinion on the cause of the fire at trial did not play a pivotal role in
convicting Parks is to underestimate the power, in the minds of lay
jurors, of hearing a highly qualified expert present opinions with
absolute certainty, because lay jurors are not equipped with the
knowledge to themselves assess the truth or reliability of such
testimony. But the mere fact that testimony is offered by an expert,
or that the expert expresses certainty in his or her expert opinions,
cannot form part of the basis for concluding that such testimony
substantially affected the outcome of a trial. First, in this case,
Parks presented her case through experts as well, who would have
enjoyed a similar amount of reverence from the jury by virtue
of their expert stature, and who likewise presented their opinions
53
as “unequivocal.” Second and more broadly, all evidence analyzed
under section 1473, subdivision (e)(1) is expert testimony, yet
the statute does not exempt such evidence from the broader
section 1473, subdivision (b) requirement that false evidence have
played a significant role in the trial in order to warrant habeas
relief.
D. Parks Has Not Established That Her Right to
Due Process Was Violated
Parks separately argues that the introduction of Ablott’s
testimony also violated her due process rights under the Fourteenth
Amendment by rendering her entire trial unfair, and that this
provides another basis for granting her petition.
Admission of unreliable scientific evidence becomes an
issue of federal due process if it is “so extremely unfair that its
admission violates ‘fundamental conceptions of justice.’ ” (Dowling
v. United States (1990) 493 U.S. 342, 352.) The United States
Supreme Court has “defined the category of infractions that violate
‘fundamental fairness’ very narrowly.” (Ibid.) The introduction
of unreliable evidence thus implicates due process only when such
evidence is “ ‘ “of such quality as necessarily prevents a fair trial.” ’ ”
(Duncan v. Henry, supra, 513 U.S. at p. 370, fn. 1.) In order for this
to be the case, the evidence must not only be unreliable or false, but
be so in such a way that “the factfinder and the adversary system
will not be competent to uncover, recognize, and take due account
of.” (Barefoot v. Estelle (1983) 463 U.S. 880, 899, superseded by
statute on other grounds as stated in Slack v. McDaniel (2000) 529
U.S. 473, 483−484; see also California v. Green (1970) 399 U.S. 149,
186, fn. 20 (conc. opn. of Harlan, J.) [“[d]ue process does not permit
a conviction based . . . on evidence so unreliable and untrustworthy
that it may be said that the accused had been tried by a kangaroo
court”].)
54
Parks argues that because “the trier of fact operated under
the false assumption that the scientific evidence at issue was valid
and reliable, there was no meaningful adversarial testing of the
false evidence[,] . . . [which made] the introduction of the now
discredited evidence, . . . proffered to the jury as infallible scientific
evidence of guilt, . . . so unfair it resulted in a breakdown in the
adversarial process in violation of [Parks’s] right to due process.”
(Internal quotation marks and citation omitted.) To the extent
Parks’s argument is aimed at any testimony other than Ablott’s
conclusion that flashover did not occur, her argument fails for the
same reasons such testimony does not constitute “false evidence”
under section 1473, subdivision (e)(1). Namely, as discussed in
detail above, the trial and evidentiary hearing evidence reflects
that, with the exception of Ablott’s testimony that flashover
did not occur, the expert opinion testimony given at trial was not
fundamentally unreliable or incorrect under modern standards,
but rather subject—then and now—to criticism and expert debate,
which the jury was itself equipped to assess. Parks argues that the
studies and increased understanding since the trial provide more
scientific support for the defense in this debate than existed at the
time of trial, something we do not dispute. But this does not render
the defense expert’s criticisms at trial so useless as to support the
requisite conclusion that the jury and adversarial system were
incapable of taking them into account.
To the extent Parks’s due process claim based on Ablott’s
testimony that flashover did not occur, such evidence was, as we
conclude above, false, and thus unreliable. But the record does not
support that the introduction of this testimony infected the entire
proceeding such that the trial can be deemed fundamentally unfair.
Indeed, for the reasons outlined above, Parks has not established a
reasonable probability that the outcome of the trial would even be
55
different, had the testimony about whether flashover occurred not
been offered and/or had Ablott concluded, as he and all experts
today agree he should have, that flashover did in fact occur.
E. A Final Note Regarding Parks’s Evidence of
Advances in Fire Investigation Science
Parks included in her supporting evidence studies
reflecting that the types of issues she argues tainted the Bell fire
investigation are common in investigations of that time period,
and have led to the reversal of numerous arson convictions, many
of which she cites in her petition. With our decision today, we
do not intend to dispute that there have been great improvements
in fire investigation methods, or to deny that advances have been
made in the understanding of how fire behaves and how to interpret
burn patterns. The salient question for purposes of Parks’s
petition, however, is not a general one regarding the relative state
of fire investigation science in at the time of trial and now. “False
evidence” under section 1473 is defined by the role of an improved
science or technology in the expert opinion at issue; relief under
that statute also depends on the role such testimony played in
a particular case. Thus, that the advances in fire investigation
science Parks cites in her petition have led courts in other cases to
conclude expert testimony in those cases constituted false evidence
does not dictate the outcome of the instant petition. For this same
reason, our denial of Parks’s petition does not suggest that these
same advances in science might not support a successful habeas
petition under different facts, depending, as section 1473 instructs,
on the effect of the changes on the testimony at issue and the
totality of the evidence presented at trial.
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DISPOSITION
The petition for a writ of habeas corpus is denied.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
57