by Edward Humes
Next, the lead arson investigator on the Parks case swore that fire patterns on the walls, floor, and bed proved that a separate second fire had been set in the girls’ bedroom, again by hand. Accidental house fires have single points of origin—the stove, a cigarette dropped on a couch, a faulty heater. But arsonists often start fires in several places in order to make sure an entire building burns.
The third and most chilling line of evidence is the investigator’s expert opinion that burn patterns proved that Ronnie Jr. had been barricaded inside his bedroom closet during the fire. If jurors believed only one thing the prosecution offered, believing that little boy had been trapped deliberately in a closet to face a truly terrible and terrifying death would be enough to convict Jo Ann Parks all on its own.
The fourth and final line of evidence was designed to make jurors want to believe the worst interpretations of the fire scene—to make them view Parks as capable of blocking her son in a closet as the house burned down. A parade of mostly police witnesses painted Parks as a liar and a cheat who changed her story about the fire multiple times. The prosecution used that information to construct a portrait of an unfeeling mother who didn’t want her kids, who made insufficient and insincere efforts to save them, who showed too little grief when they died, and who sought to profit from her children’s demise by filing lawsuits, seeking donations, and even pleading for free Disney tickets.
It sounded bad, Cohen knew. It sounded evil. And it had worked.
“For me, it was the arson evidence, the burn patterns, that convinced me,” one of the jurors, Mario Trujillo—a firefighter himself—recalled many years later. “That, and her demeanor. There were witnesses who said she acted inappropriately.”
Trujillo added that while the men on the jury were divided at first on her guilt or innocence, the two women on the panel felt strongly from the start of deliberations that she was guilty, based primarily on her demeanor, her leaving the scene with the police before her children’s fate was known, and her failing to dash into the building and get burned herself. “No mother would act like that,” Trujillo quoted one of the women on the panel. “She’s guilty based on that alone.”
Parks’s freedom would be won or lost on countering the minutiae of the prosecution’s case. Yet to get Parks a new day in court, Cohen had to grab the judge’s attention with the big picture. She needed to offer a compelling narrative, a first act that portrayed the case not simply as a lone travesty of justice, but as just one dramatic example of a sweeping, nationwide scandal of bad science and bad faith in desperate need of reform. She needed the judge who would decide Jo Ann Parks’s fate to see the case as both historic and emblematic. In the opening pages of the petition, the attorney wrote:
In 1993, Jo Ann Parks was convicted of murdering her three children based on untested and outdated theories of arson science.
The fire investigators falsely testified . . . to these conclusions by (1) using the outdated theory of negative corpus; (2) allowing their expectation bias and “junk science” to steer their investigation; and (3) basing their findings on the incorrect assumption that flashover did not occur.
By today’s methods, none of the allegedly incriminating evidence used at Parks’ trial supports the prosecution’s theory. Fundamentally speaking, the investigators and jury were misled by biases and “junk science.”
Tragically, Parks is now serving a sentence of life without the possibility of parole for a crime that never occurred. The death of the victims in this case were the product of an accidental fire.
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In order to make such a sweeping attack stick, Cohen had to undermine the four main pillars of evidence that had convinced a jury to convict a young mother with no criminal record and no history of violence of three counts of premeditated murder. The key, she believed, was to go after the work of the lead fire investigator, Ron Ablott. His steady, deep-voiced, authoritative testimony had been critical at the original trial. If she discredited his findings, Cohen believed, there would be no case left standing against Parks except for the claims she hadn’t been grief-stricken enough. And there were plenty of witnesses who had seen just the opposite. So Ablott’s mastery of fire science—or his lack of it—would be key. Knock that down, Cohen reasoned, and there would be no evidence of Parks’s guilt. There would be no evidence of any crime at all.
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Most law schools don’t teach their students how to re-investigate a fire scene. They test for and reward students who master matters of precedent and legal interpretation, who learn to argue the sufficiency of the evidence, and who can discern whether some line of testimony is relevant or improper, probative or inflammatory. The goal is to foster attorneys who can do battle with motions and memoranda and offers of proof—who can wage and win war, in short, with paper.
When first-year law students apply to the California Innocence Project, they are given a different sort of test. More of an audition, really.
One might be asked: “Go to the W Hotel and get the front desk clerk to tell you the most famous person who stayed there in the past six months.”
Or: “Find out the elementary school that your professor’s kid attends without asking directly.”
Or there was the assignment first-year law student Raquel Cohen faced: “Obtain your professor’s DNA without him knowing it.” (Solution: She followed him to a restaurant and wrestled his water glass from the busboy after he left.)
“Yeah, nobody else does that,” Justin Brooks, the founder and head of the California Innocence Project, explains. “But the idea is to see how tenacious they’ll be in the field. We want to weed out people who are too shy or unimaginative or who don’t put in the effort to complete the assignment.”
Innocence work is lonely work, he says, and it requires maximum effort for uncertain and infrequent returns. So Brooks looks for a certain type each year to fill the ranks, as the students do much of the investigation in his shop, and the best of them join the ranks of the staff attorneys. More than good grades, high scores on the LSAT, or Ivy League pedigrees, Brooks is looking for tenacity and work ethic and a certain lack of deference for the official story—an essential trait for reverse detective work.
Brooks intentionally makes these pivotal application tests come due during the middle of finals, when the law students are crazy busy and stressed. “They have to really want this, have to be willing to make a sacrifice. Those are the kids I want.”
The idea of working full-time as an innocence lawyer was unheard of until fairly recently. Up until the 1990s, those who ran and studied the justice system presumed that the innocent only rarely suffered wrongful convictions, a notion bolstered by modern legal protections for the accused such as Brady, Miranda (safeguarding the right to remain silent and have a lawyer upon arrest), and Gideon (the absolute right to a lawyer when on trial, regardless of means). Added to that was the evolution of modern forensic science for identifying the guilty through the technological wonders popularized by the TV show CSI—through which everything from hair and fibers to paint chips to bite marks to striations on bullets could be matched to suspects with unerring clarity. It seemed there was no room for error.
Even before those protections evolved, the idea that false convictions were rare was rooted in the system with more than a little arrogance. Learned Hand, one of the most quoted judges in history and generally known as a liberal defender of civil rights, wrote in 1923 that the system “has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.” Eighty-four years later, the late justice Antonin Scalia would echo those thoughts in a concurring opinion, adding a completely specious calculation of his own that the error rate in criminal convictions was vanishingly small, .027 percent, “or, to put it another way, a success rate of 99.973 percent.” Scalia arrived at this number through the sleight of hand of counting al
l types of convictions, including the vast majority that are won by criminals pleading guilty. (In 2014, a more scientific calculation of error rates among men and women sentenced to death—the sort of case that gets the most scrutiny by appellate courts—found that four out of a hundred are actually innocent, an error rate one hundred and fifty times greater than Scalia suggested.)
The idea of justice system infallibility took a serious hit, however, in 1989. That was the year a new use was found for the ultimate forensic science breakthrough: DNA matching. Touted by police and prosecutors as the new gold standard for linking criminal to crime, it also turned out to be a powerful tool for setting the innocent free. Gary Dotson, serving a fifty-year sentence for a 1977 kidnapping and rape in Illinois, became the first person in the United States to be exonerated by DNA evidence. His conviction had been based on eyewitness testimony, a police sketch, and blood type matching that was “consistent” with the rapist (as well as with ten million other American men who had the same blood characteristics). A DNA analysis could, in theory, narrow down the true rapist to only a handful of people on the planet, and by voluntarily seeking DNA testing, Dotson ran the chance of that happening—of proving his guilt beyond any reasonable doubt. Instead, the analysis showed with certainty that he could not have been the rapist, proving all that other “solid” evidence against him had been completely false. The case also called particular attention to just how unreliable eyewitness testimony can be—or how easily witnesses can be swayed in the wrong direction by suggestive questioning or prodding from police or prosecutors.
By 1992, with a scattering of lawyers around the country pushing to repurpose the crime-fighting technology of DNA testing to free the innocent, ten imprisoned people had been exonerated through new DNA evidence. There was only one prominent innocence organization in the nation at the time, New Jersey–based Centurion Ministries, but then the floodgates opened. A pair of lawyers decided to build an entire law practice around DNA exonerations. They called it “The Innocence Project,” the first of its name, founded at the Cardozo School of Law in New York by attorneys Peter Neufeld and Barry Scheck. Scheck would also be part of the “dream team” of lawyers involved with the successful defense of football great and murder defendant O. J. Simpson.
By 1999, four other innocence projects had opened, in Washington State, Illinois, Arizona, and California. Their leaders met in Chicago over pizza and plotted an innocence network to share information and tactics and to advocate laws to make reopening cases with DNA and other new evidence easier in the future, as many judges and prosecutors balked at the expense and inconvenience of testing evidence from old, long-settled cases. By 2018, the laws had changed in many (though not all) states, and sixty-six US-based innocence projects had launched, with another ten in other countries joining the “Innocence Network” as well.
These groups have been the driving force behind the more than 2,250 exonerations of the wrongly convicted by 2018—men and women who have collectively served nearly 20,000 years in prison for crimes they didn’t commit. Faulty or erroneous forensic evidence was cited as a frequent contributor to these wrongful convictions.
Justin Brooks got his start in innocence work when he was still a tenured law professor raising a family, secure in his job and place in the world at a Michigan law school. As a first-year law student, he had gone with a class to visit a prison, which changed his perspective on the criminal justice system, leading him to focus on defense work. But it was an article about the plight of a young Chicago woman sentenced to death at age twenty-one that propelled him into innocence work. Accused of participating in a double gang killing with two other members of the Maniac Latin Disciples girl gang, she had been questioned for nine hours straight by police before confessing—a confession she later claimed was coerced. Her attorney did little investigation, interviewed no witnesses, and spoke with his client for about ten minutes before setting up a “blind” guilty plea to murder charges for her, with no specified sentence—virtually unheard of in a capital case. She was sentenced to die. Shortly after that, the lawyer gave up his practice and became a priest.
When he read about the case of Marilyn Mulero, Brooks decided to visit her in prison and walked away believing in her innocence. Had her attorney explored the crime scene, it would have been clear that the only eyewitness to the shooting had lied, that she could not possibly have seen what happened from her vantage point. Plus Mulero was a poor kid of Puerto Rican descent, which touched a chord in Brooks, who spent part of his childhood in Puerto Rico and graduated from high school there, courtesy of his professional tennis player father’s wanderlust.
Back at the law school, he announced to his class, “There’s a girl on death row who says she’s innocent. Who wants to help me out?”
Four students raised their hands. Four years later, Brooks and his crew of student investigators succeeded in getting Mulero off death row and sentenced to life instead, even as he continued to work on getting her guilty plea tossed out as well. He remembers sitting out in his car that night, on a bitter cold Chicago street, exulting in the victory and possessed of the conviction that he was going to do innocence work for the rest of his life. Within the year, he gave up his tenured position to relocate to San Diego and, for half the pay and twice the cost of living, launched the new California Innocence Project at California Western Law School.
He has been representing Mulero for twenty-two years now. He flies to Illinois to visit her at least once a year. She has watched him walk twenty-seven wrongfully convicted men and women out of prison during that time. Those clients ranged from Brian Banks, a football star falsely accused of rape, to Michael Hanline, who served thirty-six years—the longest wrongful incarceration in California history at the time of his release—for a murder conviction won because police, prosecutors, and a judge buried evidence that the wrong man had been arrested. Brooks has used a range of tactics, too. Sometimes he works jointly with prosecutors to right wrongs without battling in court—a cooperative approach that makes him an outlier in the innocence business. But he has also marched more than six hundred miles with his staff from San Diego to the state capital of Sacramento to champion the “California 12,” a group of project clients Brooks wants the governor to pardon. He also hounds, cajoles, and pokes Governor Jerry Brown daily on Twitter about the California 12, whose number includes Jo Ann Parks.
But for all his efforts, the courts have refused to grant a new trial for Mulero, his first innocence client. The reasons are technical and procedural: The evidence of innocence was available when she pleaded guilty, so it does not meet the test of “new evidence” of innocence, and the courts have rejected lawyerly incompetence as a grounds because Mulero pleaded guilty instead of going to trial. Never mind that it was her lawyer’s bad advice that led her to accept the guilty plea in the first place. Now, unless the governor of Illinois commutes her sentence, she will die of old age in prison. Her appeals are exhausted.
The facts in the Jo Ann Parks case are completely different from Mulero’s, and yet the same roll of the dice is in play, the same concern that procedure and technicality could take precedence over evidence of innocence. Cohen could assemble a team of fire experts who would say the original investigation led by Ronald Ablott got it all wrong. But the district attorney’s office could simply argue that Parks’s petition has been filed too late, or the new facts aren’t really “new,” that they were argued at the original trial by the original defense experts, which means the trial was fair and the jury made its choice: Game over. Such arguments have worked well for prosecutors in other cases. And so Brooks and Cohen can only wonder and worry: Will Parks be the next Michael Hanline or the next Marilyn Mulero?
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By the time he first testified as the prosecution’s primary fire expert in the People v. Parks, Ron Ablott had worked for the Los Angeles County Sheriff for twenty-eight years. Before joining the departmen
t, he served an army combat tour in Vietnam and a brief stint as a draftsman in the junior engineering program at North American Aviation, makers of the famed X-15 rocket jet and the Apollo space capsule. His aspirations to become an aerospace engineer ended with an industry downturn, and the resulting layoff led to a job working seventy hours a week delivering dry cleaning. Then he bumped into a high school friend’s dad, a veteran Los Angeles County Sheriff’s arson investigator, who said, “Why don’t you apply to the sheriff’s department? They don’t lay off people.”