Prof touts ‘happy ending to the saddest case I know’

On a balmy summer’s day last year, David Moran and his team of criminal lawyers helped David Gavitt push a white plastic cart carrying all of his possessions from jail.

Gavitt, 54, had spent the previous 27 years at the Carson City Correctional Facility in Michigan following his conviction in a 1985 arson that killed his wife and two young daughters. But on July 6, 2012, Moran and his team were ushering Gavitt to freedom. They had just convinced the Ionia County prosecutor that there wasn’t a single piece of evidence that proved him guilty.

Moran, who co-founded the Michigan Innocence Clinic at the University of Michigan Law School, spoke to Osgoode Hall Law School students this month about the exoneration of Gavitt, a victim of faulty forensic science.

“We asked him, ‘David, where do you want to go?’” Moran told the audience about the day Gavitt walked free. “David’s answer was very clear: ‘I want to go to the cemetery.’”

On March 9, 1985, Gavitt and his wife Angela had put the kids to bed, had a few smokes, and retired to their bedroom. It was a Saturday night and there was a snowstorm, Moran told the students. The Gavitts’ dog then scratched their bedroom door, alerting them to a fire that was quickly engulfing their home.

Gavitt told Angela to get the kids from the nursery as he went to smash the window of the guest bedroom for their escape. He then returned for Angela and the girls. But overwhelmed by the heat, Gavitt ran to the window and escaped on his own with severe burns, said Moran. His family never made it out.

Police arrested Gavitt upon his discharge from the hospital for killing his family before he had a chance to visit their gravesite.

“The prosecution had a difficult case to begin with because there was zero motive,” said Moran.

There was no insurance on the house owned by Gavitt’s mother. There was also no life insurance involved and no marital difficulties, he added.

“In fact, at trial, a parade of witnesses testified that Angela and David were a very happy young couple who loved their two children very much,” he said.

So how did Gavitt end up with life in prison with no chance of parole? “The answer was entirely forensics,” said Moran.

The prosecution called two witnesses at trial: a fire marshal and a food scientist. They testified that based on their examination, the fire was intentional.

“The testimony they gave was very prevalent at the time, the 1980s,” said Moran.

“What they said is, ‘You can tell from certain indicators at the fire scene that a fire has been intentionally set.’”

One of the presumed signs, Moran noted, was that the fire was “unusually fast-moving and unusually hot.”

There were also black marks under the living room carpet that looked like “pour patterns” of gas, the experts said. The other “surefire sign” of arson was “crazed glass,” which occurs when shattered glass forms a spider web-like pattern. And then there was “allegatoring” involving burned wood beams that resemble the back of an alligator and are another indicator of arson.

Another expert in gas chromatography also reported seeing two gallons of gasoline poured over the carpet, said Moran.

Moran’s team at the Innocence Clinic has been around since 2009. Unlike some other innocence clinics, the project tackles wrongful convictions that don’t involve DNA, which can only redeem a small portion of those imprisoned by mistake.

“In the vast majority of criminal cases, there is no biological evidence left behind,” according to Moran.

The clinic received 4,000 applications when it first opened. But it rejects 85 per cent of applications because the applicant was “plainly not innocent,” said Moran.

Here at home, Osgoode Hall Law School also runs an innocence clinic that has had several successes, including the release of Romeo Phillion, who served 31 years for murder. Since the 1980s, the Osgoode Innocence Project has helped exonerate 25 to 30 people, says Alan Young, a professor and criminal lawyer who runs the clinic. There are also about 25 other cases in which people have won their freedom in the absence of evidence against them even though their innocence couldn’t be proven.

Like Moran’s clinic, Young’s Innocence Project tackles cases not involving biological evidence.

Through freedom of information laws, Moran’s team obtained all of the information and evidence police had on the Gavitt case, including 17 samples of the burned carpet taken from several spots in the home.

Investigation by experts trained in more sophisticated forensics revealed there was no evidence of gasoline on the carpet. Further, the team discovered that the phenomenon called a flashover wasn’t known at the time of the fire at the Gavitt home. Flashovers are fast-moving blazes that could be due to something as mundane as a cigarette fire on a couch. Hardly anyone survives a flashover, according to Moran.

Angela and David Gavitt were both smokers. That Saturday night in 1985, they had also left candles burning in the living room. As well, they had a dog who may have knocked something over, said Moran. “We know there are a lot more of these cases,” Moran added. “There are a lot more wrongful convictions than we thought.”

According to Moran, studies that looked into the frequency rate of wrongful convictions, specifically in capital rape-murder cases in the United States from the early 1980s to the early 1990s, came up with an estimate of a three- to five-per-cent chance of one happening.

Although the three- to five-per-cent chance of error doesn’t necessarily apply to all types of cases, it’s still “shockingly high,” said Moran.

There’s no estimate on the frequency of wrongful convictions in Canada, but the numbers don’t mean much to Young, who says “every wrongful conviction is one too many.”

“It doesn’t matter how many there are. You just got to fix the ones that you discover.”

A 2009 report from the National Academy of Sciences deemed forensic science in the United States to be “fundamentally unreliable.” But bad forensics aren’t the only source of wrongful convictions. False confessions, police misconduct, use of jailhouse informants, inept defence lawyers, and inaccurate eyewitness identifications all play a part.

In states that have the death penalty, it’s often too late to free the innocent. On the day Gavitt gained his freedom, he sat quietly by his family’s grave for two hours, said Moran. “We largely wept uncontrollably,” he added.

Gavitt now has his job back at the factory where he made furniture in 1985. He has also married a woman he met.

“He still believes to this day that he was weak because he didn’t die in the fire as well, that he went out the window,” said Moran.

But, he added: “It’s a somewhat happy ending to the saddest case I know."

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