Proving murder in case of wildfire arson difficult

Date: 2/14/2009

By KRISTEN GELINEAU
Associated Press Writer

SYDNEY (AP) — Outrage over the Australian wildfires that killed more than 180 people last week was white hot after police said some of the blazes may have been deliberately set.

The prime minister said the culprits should “rot in jail,” and government officials threatened the maximum charge: murder.

But experts note the difficulty of proving a link between the act of striking a match and causing a death.

Police on Friday charged a man with one count of arson causing death and intentionally lighting a wildfire near the town of Churchill that killed at least 21 people. The official death toll from the fires that raged through southeastern Victoria state Feb. 7 is 181, but officials expect the tally to exceed 200.

Wildfires burn annually in places with hot summers where people live near wooded areas — Australia, California, Spain, France. Foul play is also common.

A report last month by the Australian Institute of Criminology concluded about half the 60,000 wildfires each year are either deliberately set or suspicious.

Few arrests are made, and even fewer convictions secured.

One major complication is that wildfires often merge, making it difficult to link an arson fire with the blaze that eventually kills people, said Damon Muller, who has researched arsonists for the institute.

“If someone starts a fire and that joins to another fire, how responsible is that person?” Muller said.

In such cases, prosecutors generally call in experts who examine the burn damage to determine where two blazes join and their direction, said Thomas Fee, former president of the Maryland-based International Association of Arson Investigators.

But experts for the defense could easily testify that the defendant’s fire alone wouldn’t have been enough to hurt anyone, Fee said.

Also tricky is proving that an arsonist either intended to kill someone or inflict grievous bodily harm, Muller said.

Others say it can be done.

“It’s not as difficult as you think,” said Los Angeles Deputy District Attorney Jean Daly, who spent nine years prosecuting arson cases in California.

Under California law, arson can qualify as felony murder, which allows for a murder charge against a defendant who doesn’t intend harm.

One man, Raymond Lee Oyler, is currently on trial in California for allegedly setting a 2006 wildfire that killed five firefighters. He has pleaded not guilty to 45 counts including murder and arson and faces the death penalty if convicted.

Harder than proving a murder charge in a wildfire arson is convincing a jury the defendant committed arson in the first place, Daly said.

“You have to establish the links,” she said.

That task falls to investigators, who first hunt out eyewitnesses, said Ross Brogan, a former New South Wales state fire investigator and a fire investigation lecturer at Australia’s Charles Sturt University.

Finding the fire’s source depends on determining where it started. To do that, Brogan said, investigators interview firefighters who can detail the intensity of the flames, and study weather data to determine wind direction — both of which help investigators track the fire to its source.

The major problem is that physical evidence often burns up — or is removed by the arsonists themselves, Fee said.

“For a long number of years, they said that arson was the hardest crime to prove,” Fee said. “If you don’t have an eyewitness to this, it all becomes circumstantial evidence — and the more you try to convict on circumstantial evidence, the tougher it gets.”

Copyright 2009 The Associated Press.