Glenn Bradford v. Richard Brown , 831 F.3d 902 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3706
GLENN PATRICK BRADFORD,
Petitioner-Appellant,
v.
RICHARD BROWN, Superintendent,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:13-cv-00410-JMS-WGH — Jane E. Magnus-Stinson, Judge.
____________________
ARGUED APRIL 14, 2016 — DECIDED AUGUST 4, 2016
____________________
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. In 1993 Glenn Bradford was con-
victed in an Indiana state court of a murder and arson com-
mitted in Evansville the previous year, and was sentenced to
80 years in prison, where he remains. In 2013 he filed this
federal habeas corpus suit, in which he claims that he can
prove his innocence. He asks for a new trial, which the dis-
trict judge denied, precipitating this appeal.
2 No. 15-3706
Bradford, an Evansville police officer, was involved in an
extramarital affair with a woman named Tamara Lohr. After
his wife discovered the affair, Bradford decided to end it; but
Lohr resisted, emailing him that if he left her she’d tell his
wife the affair was continuing.
At 6:35 a.m. on a day a month or so after Lohr’s threats
and just after Bradford had finished a night shift, he report-
ed a fire at Lohr’s house. He told the responders that he’d
entered the house to try to extricate her but had been unable
to do so and believed she was dead. A firefighter had driven
by the house at 6:30 a.m. and seen no signs of fire, but short-
ly after Bradford reported it the firefighter entered the
house, extinguished the fire, and found Lohr’s corpse on her
bed. He estimated that the fire had started only a few
minutes before he arrived. Fire investigators found in Lohr’s
bedroom an empty gasoline can from which gasoline had
been poured onto the mattress on which Lohr’s body lay and
onto the floor between the mattress and the bedroom door.
They inferred that the gasoline had been ignited by someone
standing in the bedroom doorway. Lohr, it was discovered,
had been stabbed to death and her body had been burned
after she died. Her poodle was found dead, also with stab
wounds, in the living room, which was just outside the bed-
room, but we’ll see that the dog was still alive when the fire
started. From the conditions of the house and grounds the
police concluded that the arsonist-murderer had staged a
burglary rather than broken into the house.
Although the exact time of Lohr’s death could not be de-
termined, the state believed that she’d been stabbed during
the night. Suspicion quickly focused on Bradford, who ap-
pears to have concealed his whereabouts on the fatal night
No. 15-3706 3
and thus could have murdered Lohr sometime during his
night shift before returning in the morning to set the fire. He
had no alibi for the period from about 11 p.m. to midnight.
He claimed in an entry in his police activity log to have re-
sponded during that period to a hit and run accident, but the
officer working that accident testified that he hadn’t seen
Bradford at the accident scene—while an Evansville police
car that could have been Bradford’s had been seen outside
Lohr’s house at about 11 p.m. The evidence presented at the
trial included not only Bradford’s seeming attempt to invent
an alibi but also an attempt by him to delete Lohr’s threaten-
ing emails to him a couple of hours after the fire.
Although only 65 seconds elapsed between when a bank
camera revealed Bradford two blocks from Lohr’s house and
driving toward it and when he reported the fire, an investi-
gator testified at trial that that was enough time for Bradford
to have driven to the house, entered, spread the gasoline,
and lighted it.
At trial, rival fire experts testified for the state and the de-
fense about whether the fire had to have burned for more
than eight minutes, in which event Bradford would have
had a solid alibi because the fire was extinguished by 6:43:19
a.m. and he could not have set it before 6:35 given that he
was seen by the bank camera two blocks away at 6:34:04 and
that it would have taken him about a minute to reach the
house from there, start the fire, and then call emergency ser-
vices (which he did at 6:35:09)—and he’d been on police du-
ty until about 6:30. No gasoline had been found on Brad-
ford’s uniform and the police had failed to investigate an-
other possible suspect—a man who had lost his job as a jailer
for the Sheriff’s department after Lohr accused him of sexual
4 No. 15-3706
harassment, and whom she had subsequently reported to
the police for parking outside her house in the middle of the
night. There is, however, no evidence connecting that man
with the arson or murder.
Bradford was convicted by a jury of murder and arson,
and his conviction was upheld in Bradford v. State, 675
N.E.2d 296 (Ind. 1996), and his request for state post-
conviction relief denied in Bradford v. State, 988 N.E.2d 1192
(Ind. App. 2013). He principally argues in the present pro-
ceeding that he couldn’t have been the arsonist (and if not,
then presumably not the murderer either) because his expert
witnesses testified that the fire must have burned for more
than eight minutes. If that’s true Bradford could not have
been the person who set the fire because, the reader will re-
call, eight minutes was the maximum time that the fire if set
by Bradford would have lasted. Although his expert witness
at trial testified that the fire had burned for 15 minutes, his
principal expert witness in the post-conviction proceedings,
Douglas Carpenter, went further, testifying that the fire
must have burned for at least 30 minutes before it was extin-
guished. He based that estimate on his inspection of burned
and unburned wood and other materials in the house and on
the level of carboxyhemoglobin (COHb) in the poodle’s
blood—a house fire generates carbon monoxide (CO) that
can combine with hemoglobin, a constituent of blood.
Bradford relies on three facts asserted by Carpenter to
support his contention that the fire must have lasted more
than eight minutes: (1) the time it would have taken the fire
to burn through the upper panel of the bedroom door; (2)
the time it would have taken for the poodle to have accumu-
lated the amount of COHb found in its blood; and (3) the
No. 15-3706 5
time it would have taken the fire to consume the mattress on
Lohr’s bed. These facts don’t make a case. Carpenter was
unable to prove that the fire would have taken too long to
burn through the upper panel of the bedroom door for Brad-
ford to have set it. He conducted experiments under condi-
tions that simulated a maximum temperature near the bed-
room ceiling of 350°C. But the fire might well have been hot-
ter than that. He contended that because none of the 12
panes of glass in the front bedroom window was broken, the
room temperature near the ceiling (and thus near the top
door panel) must have been below 280°C, and at that tem-
perature it would he claimed have taken at least 30 minutes
for the bedroom door to char through. He based this tem-
perature claim on a study reported by Vytenis Babrauskas,
“Glass Breakage in Fires” 2–3, www.doctorfire.com/Glass
Break.pdf (visited Aug. 2, 2016), of the probability of glass
breakage at different temperatures. That study had been lim-
ited to glass three millimeters thick, and he admitted not
knowing the thickness of Lohr’s windows, though he testi-
fied that three-millimeter glass is “typical.”
He claimed that because none of the 12 panes of glass
was broken, the temperature near the ceiling of Lohr’s room
must have been below 280°C. That was the temperature at
which the three-millimeter glass in the study on which he
relied had a one-in-twelve probability of breaking. But a
one-in-twelve probability of breakage at a particular tempera-
ture does not mean that if there are twelve panes one of
them is certain to break, and Carpenter failed to justify his
assumption that the more panes in the unbroken window,
the lower the temperature had to have been. Moreover, he
had no evidence that all the windowpanes had been exposed
to the same temperature as the ceiling and the top panel of
6 No. 15-3706
the door. In a normal room fire the highest temperature is at
the ceiling and the temperature near the floor is much lower.
See T. J. Shields, et al., “Performance of a Single Glazing As-
sembly Exposed to Enclosure Corner Fires of Increasing Se-
verity,” 25 Fire & Materials 123, 125–26 (2001).
His testimony that the top panel of the door would have
required about 11 minutes to char through even if the fire’s
temperature had reached (though it hadn’t) 600°C (meas-
ured just below the ceiling, where the fire would have been
at its hottest) misrepresented his own report, according to
which the 11-minute estimate was based on the heat flux
(the rate at which heat energy passes through a given sur-
face per unit of time) that would have been produced at a
near-ceiling temperature of 350°C. And as we said, Carpen-
ter didn’t test char-through times for heat fluxes correspond-
ing to temperatures higher than 350°C, even though the fire
in Lohr’s house may have been hotter than that.
There was also no basis for his conclusion that it would
have taken 30 minutes for the fire to have caused the COHb
level discovered in the poodle’s autopsy. That estimate was
based on the rate of carbon-monoxide uptake for an adult
human being at rest, and such an estimate is not valid for a
fifteen-pound dog who may moreover as we noted have
been moving around in the presence of the fire. (What is
clear, however, is that the poodle was alive when the fire
started, because the only possible source of the elevated
COHb found in its blood was inhalation of carbon monoxide
(CO) produced by the fire.) Carpenter’s own source ex-
plained that the uptake rate is significantly higher for small-
er bodies and bodies in motion. David A. Purser, “Assess-
ment of Hazards to Occupants from Smoke, Toxic Gases,
No. 15-3706 7
and Heat,” The SFPE Handbook of Fire Protection Engineering
2–116 (4th ed. 2008).
The fire duration that he inferred from the poodle’s
COHb level was further inflated by his use of carbon-
monoxide concentrations measured outside closed doors.
The door to Lohr’s bedroom was open by about an inch be-
cause of clothing jammed into the opening, and so the dog,
who was a small distance outside the bedroom, would have
breathed more carbon monoxide from the fire raging in the
bedroom than had the door to the bedroom been closed.
Carpenter concluded that Lohr’s mattress must have
been completely consumed before the door charred through,
for had it been consumed afterward additional air ventila-
tion caused by the fire burning a hole in the door panel
would have interacted with the mattress (fuel for the fire) to
cause the fire to reach flashover conditions. Flashover condi-
tions occur when the upper layer of gas in a room becomes
hot enough (approximately 500°C to 600°C) to ignite all
available combustible surfaces. Since it is undisputed that
the room did not reach flashover, Carpenter concluded that
the mattress must have been completely consumed before the
door charred through. He used studies of rates of mass loss
for flexible polyurethane foam (the material in Lohr’s mat-
tress) to predict what the mass loss rate would be in a room
on fire with the door open one inch. Estimating the maxi-
mum duration of the fire as two hours and the minimum as
30 minutes, he concluded that the fire must have been start-
ed between 4:30 and 6:00 a.m.
Bradford infers from this that it would have taken two
hours for Lohr’s mattress to be consumed, and so the fire
must have lasted at least that long. But two hours was Car-
8 No. 15-3706
penter’s estimate of the maximum time for the mattress to be
consumed. His estimate of the minimum time (30 minutes) if
it were correct would exonerate Bradford, but the reliability
of that estimate was undermined by the errors, discussed
earlier, in Carpenter’s testimony and report.
Two officers who appeared at the fire scene three
minutes after Bradford had arrived reported that smoke was
coming from the eaves of the house. Carpenter argues that
smoke couldn’t have come from the eaves until after the
door had charred through because until then smoke would
have gone out through the roof vents rather than sideways
through the eaves. After the door charred through, however,
the roof vents would be inadequate to vent all the smoke
emerging from the bedroom and therefore smoke would go
through the eaves as well as the vents. If Carpenter is cor-
rect, then, for Bradford to have been the arsonist, the fire had
to have started, the door must have charred through, and
smoke from the eaves must have appeared—all within three
minutes of Bradford’s arrival at the house, since responders
to the fire arrived three minutes after Bradford and observed
smoke upon arrival. But as we’ve said, the char-through
time if the fire was hotter than 350°C is unknown and we
also don’t know how fast the smoke would have moved
through Lohr’s house and out the eaves and roof.
It’s true that two joggers saw smoke coming from Lohr’s
house at 6:36:07, about a minute after Bradford called emer-
gency services and two minutes after he was recorded by the
bank camera driving toward the house. Carpenter claimed
that the joggers’ testimony corroborated his conclusion that
Bradford could not have been the arsonist, since it is unlikely
that Bradford would have been able to set the fire in time for
No. 15-3706 9
it to emit visible smoke in fewer than two minutes. But this
argument does not appear in Bradford’s briefs and the
state’s expert witness testified that smoke would have been
visible outside the house within a minute after the fire was
set.
Bradford further argues that the evidence that he could
have reached Lohr’s house and set the fire within 65 seconds
(between 6:34:04 when he was photographed by the bank
camera and 6:35:09 when he called emergency services) did
not account for the time required for the murderer-arsonist
to carry the gas can from the back porch to Lohr’s room, turn
off the electrical breakers, and stab the poodle. Not so. Alt-
hough Lohr normally kept her gas can on the back porch,
there is no evidence that it was there when the arsonist ar-
rived that morning. Had Bradford brought it inside during
his visit to Lohr between 11 p.m. and midnight, he could
have used it at 6:34 a.m. without having to fetch it from the
porch. And he would have needed to turn off the electrical
breaker in the morning only if Lohr’s neighbor was correct
that he saw her light on at 12:30 a.m. That neighbor
acknowledged, however, that he was estimating the time
and had not been looking at a clock, so Bradford may have
turned off the breaker earlier. Nor would it take long to stab
a small poodle twice. The jury thus could reasonably find
that 65 seconds was enough time for Bradford to arrive at
Lohr’s house and complete all the tasks that the evidence in-
dicated had been completed by the murderer-arsonist.
Faced with “a request for an evidentiary hearing” to de-
termine whether a convicted defendant should be given a
chance to prove his innocence in a habeas corpus proceed-
ing, “the District Court must assess the probative force of the
10 No. 15-3706
newly presented evidence in connection with the evidence of
guilt adduced at trial.” Schlup v. Delo, 513 U.S. 298, 331–32
(1995). Bradford had his chance and failed to present reliable
evidence that would establish his innocence of the arson and
murder.
Changing course, Bradford argues that his trial counsel
was ineffective in deciding to retain a fire expert named
Barker Davie, who co-owned a fire-investigation business,
attended training programs and wrote articles, and had testi-
fied many times as a fire and arson expert for the state—
experience that gave him particular credibility as a defense
witness. Although Bradford claims that Davie was not an
expert on fire duration, there is no support for that claim.
According to Bradford, Davie’s testimony that the fire lasted
about 15 minutes (and definitely more than 9 minutes, so
that Bradford could not have set it), though favorable to
Bradford, was not convincing, because he utilized a wood-
charring rate that the National Fire Protection Association
had warned was not universally applicable as it was “based
on [only] one set of laboratory conditions.”
The Indiana Court of Appeals can’t be said to have erred
in holding that Bradford’s trial counsel did not render inef-
fective assistance to his client by selecting Davie as a wit-
ness. See Strickland v. Washington, 466 U.S. 668, 687–91 (1984).
He was a qualified and well-regarded fire expert who of-
fered a defensible though not definitive estimate of the fire’s
duration. It was not a case in which counsel made no mean-
ingful investigation or failed to present a defense expert on a
critical issue. See, e.g., Thomas v. Clements, 789 F.3d 760, 768–
69 (7th Cir. 2015); Richey v. Bradshaw, 498 F.3d 344, 362–63
No. 15-3706 11
(6th Cir. 2007); Dugas v. Coplan, 428 F.3d 317, 328–34 (1st Cir.
2005).
Bradford’s final claim is that his right to a fair trial was
violated because the jurors visited Lohr’s house and timed
whether Bradford could have set the fire in 65 seconds. As-
suming that such an experiment was conducted (different
jurors made contradictory reports of the matter), it was law-
ful because the jury was merely using its common sense to
evaluate a timing issue critical to the case, and there has
been no showing that it created an unacceptable risk of an
incorrect verdict. See Kurina v. Thieret, 853 F.2d 1409, 1413–14
(7th Cir. 1988).
The judgment denying habeas corpus is
AFFIRMED.
12 No. 15-3706
HAMILTON, Circuit Judge, dissenting. Petitioner Bradford
has come forward with powerful evidence of both his inno-
cence and his trial lawyers’ ineffective assistance in dealing
with the critical scientific issue—the duration of the fire in
Tamara Lohr’s bedroom. The State and the courts upholding
Bradford’s convictions have not yet offered a plausible theory
to account for the physical evidence of the fire and the time
Bradford supposedly set it.
Instead, to rebut the scientific foundation for Bradford’s
petition for a writ of habeas corpus, the majority has struck
out on its own with some modest criticisms based on the ma-
jority’s own research and analysis. Those criticisms do not un-
dermine the conclusion that Bradford could not have been the
arsonist and murderer. Bradford and his key post-conviction
expert also have not had an opportunity to respond to even
these modest criticisms. Rather than affirm the denial of relief
for Bradford based on these untested critiques, we should or-
der a new trial to test all the relevant evidence. I respectfully
dissent.
The scientific issue requires close attention to the timing of
Bradford’s actions, to the physical details of the fire and the
damage it caused, and to objective information about fire be-
havior. I cannot offer the reader a shortcut, but I can offer a
roadmap. Part I lays out the critical facts about the murder
and fire: in I-A, the timing of Bradford’s movements and the
fire, in I-B the State’s theory for Bradford’s guilt, and then in I-
C the key physical evidence. Part II turns to the law and how
Bradford’s otherwise able counsel provided ineffective assis-
tance by failing to present available and credible expert testi-
mony on the critical issue of fire duration. Part II reviews the
evidence of fire experts at trial and then the post-conviction
No. 15-3706 13
case, applies the law governing ineffective assistance claims
to those facts, and finally addresses the majority’s critiques of
the new evidence.
I. The Murder and the Fire
A. Timing
The case against Bradford was circumstantial. No one wit-
nessed Tamara Lohr’s murder, and no physical evidence
linked Bradford to her death. Yet Bradford was an obvious
suspect. He and Lohr had been having an affair. Bradford’s
wife had learned of it, and he had recently decided to end it.
Lohr responded with emails threatening to tell Bradford’s
wife the affair was continuing. Making things worse for him-
self, Bradford tried to delete some of those angry emails a cou-
ple of hours after the discovery of Lohr’s body.
But undisputed facts from the prosecution’s own case
make it impossible that Bradford could have murdered Lohr
and set the fire in her bedroom. Those undisputed facts con-
fine the State to a theory that ultimately collapses from inter-
nal contradictions about the timing and intensity of the fire.
Bradford visited Lohr for a few minutes on the evening of
August 1, 1992, leaving around 10:20 p.m. to start his night
shift as a police officer. Lohr was alive when he left. She talked
with her father by telephone between about 10:25 and 11:00
p.m. The next morning, when the fire department arrived at
her home just after 6:30 a.m., her bedroom was ablaze and
Lohr was dead. She had been murdered before the fire began,
stabbed 21 times. Gasoline had been used as an accelerant.
Bradford’s movements that night and morning provide
the first of the facts that confine the State’s theory. After leav-
ing Lohr’s house around 10:20 p.m., he reported for patrol
14 No. 15-3706
duty on the night shift, starting at 10:30, while Lohr was on
the phone with her father. From then until 6:34 the next morn-
ing, Bradford was on patrol and accounted for, with one no-
table exception. Between 11:06 p.m. and 12:11 a.m., there was
a gap in his activity log for the night. That would have been
his only opportunity to commit the murder. The rest of the
night, he was busy with patrol duties until his shift ended. 1
The timing of the fire and Bradford’s movements in the
morning is critical. The State’s case rested on the theory that
Bradford had not started the fire until the morning, just
minutes before firefighters extinguished it. We know Brad-
ford left work about 6:30 a.m. and headed for Lohr’s house. A
bank’s ATM camera a few blocks away from Lohr’s home
camera captured an image of Bradford’s car passing the bank
at exactly 6:34:04 a.m. 2
Just 65 seconds later, at 6:35:09 a.m., Bradford was at
Lohr’s house calling for a fire truck and ambulance. Less than
a minute after that, at 6:36:07 a.m., two runners two blocks
away saw a column of smoke from the house rising above the
treeline—smoke they described as “real thick,” and “very
dark, black looking, and so thick.” Police and fire arrived at
1The majority claims that Bradford “appears to have concealed his
whereabouts on the fatal night.” If he had known he would want an alibi,
I expect he would have done a better job of manufacturing one. Bradford’s
activities in those 65 minutes were hotly disputed at trial, but my focus is
on the duration of the fire, even assuming that his alibi evidence for those
65 minutes need not be believed.
2 This time
and the others presented in the evidence were all synchro-
nized to ensure exact comparisons of times from different systems, such
as the ATM camera and the police and fire dispatch systems.
No. 15-3706 15
6:38:30 and 6:38:49 a.m., respectively. The fire was extin-
guished no later than 6:43:19 a.m. An empty gas can was un-
der Lohr’s bed where her body lay.
Later the day of the fire, an investigator used an electronic
“sniffer” to check Bradford’s uniform and shoes. They
showed no signs of gasoline or other accelerants. Nor was
there any blood on his uniform. Police officers who were close
to Bradford at the scene noticed he smelled of smoke but not
gasoline. That was consistent with Bradford’s report that
when he arrived, he went into the house but it was so full of
smoke that he was unable to reach Lohr’s bedroom.
B. The State’s Theory
The undisputed timing evidence left the State with a the-
ory that seems unlikely on first reading. According to the
State, a police officer planned and carried out a scheme—
while on patrol duty and subject to calls at any moment dur-
ing a busy Saturday night shift in high summer—in which he
returned to Lohr’s house between 11:00 p.m. and midnight,
murdered her by stabbing her 21 times, and then carefully ar-
ranged the premises to fake a break-in and made preparations
to start a fire in a return visit. The State’s theory is that Brad-
ford then returned to work (in a clean uniform, no less),
worked the rest of his shift, behaving professionally and ex-
hibiting no unusual behavior toward anyone he encountered,
and then returned to the scene of the murder just after 6:30
a.m. both to start the fire and to call it in just seconds later.
On further scrutiny, this theory becomes even less likely. It
requires that Bradford, in no more than about 45 seconds, en-
countered a neighbor who he knew would recognize him,
walked calmly into Lohr’s house, poured gasoline over her
16 No. 15-3706
body, the bed, and the floor, lit a fire, and then left the house
and immediately called the fire department. 3
Why would a police officer use a plan that required him to
make a second visit to the scene of the murder and ensured
he would be there when Lohr’s body was discovered? Why
make that second visit late enough in the morning that a num-
ber of neighbors would be awake and out on streets and side-
walks and able to place him there, supposedly before there
was any sign of a fire? If the fire was meant to conceal the
murder, why not light it at night, during the first visit, when
he had at least an arguable alibi, and when the fire would
have had a much better chance of going undiscovered long
enough to destroy significant evidence?
Despite these problems, this had to be the State’s theory to
convict Bradford. Yet murder cases can involve strange be-
havior, even if it seems improbable. Those problems with the
theory make it implausible but do not quite disprove it.
C. Physical Evidence of the Fire
The physical evidence of the fire, however, finishes the job
of refuting the State’s theory. Under that theory, the fire could
have burned no more than eight and a half minutes after
Bradford supposedly started it. It also would have had to gen-
erate a heavy column of smoke visible from two blocks away
no more than 90 seconds after ignition.
3The time between Bradford’s appearance on the bank camera and
the call to emergency services was 65 seconds. A detective testified that
completing the drive from the bank would have taken 18 to 23 seconds,
leaving about 45 seconds to complete all the other tasks.
No. 15-3706 17
Investigators found many clues to the duration of the fire.
The fire had been confined to Lohr’s bedroom, as shown by
the only minor damage to areas outside the bedroom. Criti-
cally, the bedroom door had been open just about one inch
during the fire, prevented from closing entirely by a clothes
hanger. Paint at the top of the door frame had been protected
by the door, showing that it had remained nearly closed dur-
ing the fire.
Within the bedroom, the fire caused extensive damage.
Lohr’s foam mattress had been entirely consumed. Yet the
room had not gone into “flashover”—when the upper layer
of gas in a room becomes hot enough to ignite all available
combustible surfaces. The room had two windows: the front
bedroom window, made up of twelve glass panes, was intact.
(A140) The side window had been shattered by firefighters’
efforts to access the bedroom, but one firefighter testified that
only one of its panes had had a few long cracks in it before
that occurred. (Tr. 976–68) Even the wooden dividers separat-
ing the panes were still intact. (Tr. 1955)
The upper panel of the bedroom door had charred
through from ambient heat, as had a similar closet door. That
hole in the panel of the bedroom door allowed smoke from
the bedroom to escape through that gap, and then up through
an open hatch to the attic. Until the door charred through, no
significant amount of smoke would have escaped the bed-
room. Until that happened, there was no way for enough
smoke to accumulate in the attic to cause a thick smoke plume
and to seep from the house’s eaves.
No witness, lawyer, or judge has offered a plausible theory
as to how the door could have charred through and the fire
produced a heavy column of smoke within 90 seconds after
18 No. 15-3706
Bradford entered the house. The fire simply could not have
done so much damage to the bed and to the bedroom door in
the available time. Even to approach those short times, the fire
would have left unmistakable signs of much higher tempera-
tures and a flashover fire in the bedroom, which did not hap-
pen. In short, no one has offered a plausible account of the
timing and physical evidence that supports Bradford’s con-
victions.
II. The Claim for Ineffective Assistance of Counsel
The fire’s duration has always been the pivotal issue in the
circumstantial case against Bradford. If the fire burned longer
than eight and a half minutes, then it does not matter whether
he might have had a motive to kill Lohr or that he tried to
delete emails about the affair or that the able prosecutor
scored some effective points in cross-examining him. If the
fire began before 6:34 a.m., Bradford could not have been the
arsonist—full stop.
The failure of Bradford’s lawyers to identify and call an
appropriate expert on fire duration amounted in this case to
ineffective assistance and led to an unreliable verdict. To show
the ineffective assistance, I review in Part II-A the expert evi-
dence about the fire at trial, in II-B the expert evidence Brad-
ford offered in the post-conviction case, in II-C the applicable
law, and in II-D the majority’s criticisms of the post-conviction
expert evidence.
A. Fire Experts at Trial
The prosecution called Jesse Storey, an investigator for the
Evansville Fire Department. He opined that the fire as a whole
lasted a total of seven to ten minutes (Tr. 1993), nicely brack-
eting the maximum eight-and-a-half minutes allowed by the
No. 15-3706 19
State’s theory. Storey also said the door would have charred
through in two to three minutes. (Tr. 2018) He did not explain
the basis for his char-through estimate. He also claimed that
smoke would have been visible from outside the house within
a minute of ignition. (Tr. 1990) If that were true, it might help
explain away the runners’ testimony. The problem is that nei-
ther Storey nor anyone else has offered an explanation for that
claim, let alone any quantitative basis for it, keeping in mind
that the bedroom door was nearly closed and remained intact
during that time, according to Storey himself.
The defense called Barker Davie, a well-regarded forensic
chemist and fire investigator. He was an expert on the causes
and origins of fires, including cases of arson. In this case,
though, there was no doubt about the cause or origin. Timing
was the issue. Despite his other abilities, Davie was not able
to provide the needed expertise on that issue.
Davie described the behavior of the fire in qualitative
terms, testifying that the fire would have burned intensely at
the beginning due to the gasoline, would have died down as
the oxygen in the nearly closed room was consumed with lit-
tle ventilation to supply new oxygen, and then would have
flared up again once there was a new source of air—i.e., after
the door panel charred through. He also testified about the
quality of the smoke the fire would have produced and the
path the smoke would have taken. Davie testified that the
smoke would have escaped the bedroom, first through the
crack in the slightly open bedroom door and then, in greater
amounts, through the hole in the door after it charred
through. It would have risen through the open scuttle hole
into the attic and exited through the roof vent. Eventually, he
testified, as the fire continued to burn and more smoke built
20 No. 15-3706
up in the attic, the plume would have become visible above
the roof line; smoke might also have begun to seep from be-
neath the eaves if it had built up to such a degree that the roof
vents could no longer provide sufficient egress.
On the critical matter of timing, however, Davie was not
able to offer any reliable quantitative analysis—not for the
door to char through or for smoke to become visible. When
asked about the time to char through, he offered only an esti-
mate based on the National Fire Protection Association “in-
ternational rule of thumb” that “wood will char and burn at
the rate of roughly one inch in forty-five minutes time frame.”
(Tr. 3085) Davie used that rule of thumb to estimate a char-
through time of between seven and ten minutes for this door
panel about 5/16” thick. (Tr. 3086) As for seeing smoke, Davie
said he could not estimate “how long and what range of time
it would be before smoke would be clearly visible from the
outside of the house.” (Tr. 3088) Instead, he relied on the fact
that the two runners had seen a heavy column of smoke as
early as 6:36:07 a.m., just two minutes after Bradford passed
the bank camera on his way to Lohr’s home. Because gener-
ally smoke takes time to build up, he testified, it would be
“highly improbable” that the smoke would be visible “in the
first minute or two of that fire.” (Tr. 3091; 3099–3101)
When asked for an opinion as to the fire’s earliest possible
starting time and the range the fire could have burned, Davie
was unable to offer an estimate based on the physical evi-
dence at the scene. Instead, he based his estimate on the testi-
mony of Gerald Johnson, a newspaper carrier who testified he
smelled smoke in front of Lohr’s home during his paper route.
Johnson described hearing fire alarms later that morning and
estimated he had smelled smoke seven and a half to ten
No. 15-3706 21
minutes earlier than that. Bradford’s call was fixed at 6:35:09
a.m., so with an estimated alarm time of 6:36, Johnson would
have smelled smoke between 6:26 and 6:29 a.m., five to eight
minutes before Bradford drove past the bank. Davie also tes-
tified that the smoke would not have been perceptible for
about two to five minutes after the fire started, because time
was required for the smoke to build in intensity, pushing the
ignition time even earlier. (Tr. 3122)
On cross-examination, Davie was asked to ignore the wit-
ness testimony and to provide an estimate, “based upon the
physical evidence,” as to the minimum amount of time the
fire would take. He responded:
Based just solely on the physical evidence and
nothing else that door frame could burn at the
rate of one inch in forty-five minutes time frame
with constant direct flame impingement and
that would take on the order of about eleven
minutes to do that. (Tr. 3227)
That opinion was “[s]olely based on just looking at that door
excluding everything else and that’s the only piece of physical
evidence that I know of right now that’s present here that
would help give you a gauge.” (Tr. 3228)
Davie had made a critical mistake that undermined his
credibility. In rebuttal the State called Donald Johnson, a Spe-
cial Agent with what was then the federal Bureau of Alcohol,
Tobacco and Firearms. He testified that Davie’s “rule of
thumb” was “no longer considered to be a rule or a standard.”
He cited NFPA Publication 921, which was released in 1992
and rejected Davie’s “rule of thumb”:
22 No. 15-3706
4-5.2* Rate of Charring. The depth of char meas-
urements should not be relied on to determine
the duration of the burning. The rule of 1 in. in
45 min for the rate of charring of pine is based
on one set of laboratory conditions in a test fur-
nace. Fires may burn with more or less intensity
during the course of an uncontrolled fire than
under a controlled laboratory fire. Actual labor-
atory char rates from exposure to heat from one
side vary from 0.4 in. per hr at 750°F (390°C) to
10 in. per hr at temperatures approaching
2000°F (1090°C) in intense fires. Even these fig-
ures will vary with the species of the wood, ori-
entation of the grain, moisture content, and
other variables. Charring rate is also a function
of the velocity of hot gases and the ventilation
conditions. Fast moving gases or ventilation can
lead to rapid charring.
Donald Johnson’s testimony wholly undermined Davie’s and
the defense’s only analysis of the physical evidence to find the
fire duration, which had been based on an obsolete standard
that had been disavowed more than a year before trial.
Johnson also disagreed with Davie’s seven- to eleven-mi-
nute estimate of the char-through time for the door. Johnson
testified that the door would have charred through in three to
four minutes, though he did not offer any empirical basis for
that estimate. (Tr. 3818–19)
Davie’s reliance on the discredited “rule of thumb” left
Bradford with no credible expert testimony on the timing of
the fire. Instead, all he had was the imprecise and unreliable
No. 15-3706 23
testimony of the newspaper carrier, Gerald Johnson. 4 The
State made this point several times in closing. Here was the
most telling attack:
[Y]ou could boil down [Davie’s] hours of testi-
mony to this: that if Gerald Johnson smelled
smoke coming from Tammy Lohr’s bedroom
and if that smoke was part of the fire that
burned down her bedroom and burned her
body and if that smell of smoke happened be-
fore Patrick [Bradford] got there then Patrick
Bradford didn’t set the fire. Well, you don’t need
to pay someone a hundred and twenty-five dol-
lars an hour to tell you that. (Tr. 3950–51)
See also Tr. 3938, 3943. The attacks were right on target. On
the critical issue of fire duration, Davie simply did not pro-
vide expertise that helped the defense.
B. Expert Evidence in the Post-Conviction Case
Bradford was convicted of the murder and arson, and his
convictions were affirmed. Bradford v. State, 675 N.E.2d 296
(Ind. 1996). He sought post-conviction relief. After years of
delay, the state court held an evidentiary hearing in 2011.
Bradford presented a number of claims, but I focus on the sci-
entific evidence he presented to show that the fire could not
have developed as the State had claimed to show his guilt.
4As the State pointed out in closing, Johnson testified that the smoke
smelled like burning wood, which is not the smell the foam mattress—the
primary source of fuel—would have given off. Johnson also said that he
had been “convinced” the smoke smell was coming from behind the
house, not Lohr’s bedroom; otherwise, he would have called in an alarm.
24 No. 15-3706
Bradford offered the testimony of Douglas Carpenter, a
fire protection engineer. Carpenter did what Davie and the
State’s experts had failed to do for the original trial: he pro-
vided a quantitative analysis, rooted in science and the phys-
ical evidence, of the duration of the fire.
Carpenter’s report described flashover (when hot gases
reach a high enough temperature to ignite all available com-
bustible surfaces in a room). Generally, the upper layer tem-
perature must be about 500° to 600° Celsius (about 930° to
1100° Fahrenheit) for this to occur, which corresponds to a
heat flux of 20 kilowatts per square meter at floor level. Phys-
ical evidence shows that flashover did not occur. (A120–21)
Carpenter set out to estimate how long it took for the door
panel to char through in non-flashover conditions, and how
long it would have taken, based on the known conditions of
the fire. First, he analyzed the significance of the smoke plume
rising from the attic and the smoke seeping from beneath the
eaves. Carpenter, like both the State’s experts and Davie, rec-
ognized that the fire was “ventilation limited”—that is, lim-
ited by lack of oxygen, not lack of fuel—before the door
charred through. The nearly closed bedroom door meant that
the oxygen in the bedroom was used quickly and could not
be replaced with fresh air.
According to Carpenter, the flow of smoke out of the bed-
room also would have been minimal before the door charred
through because the smoke had so little space to escape. There
would have been no appreciable smoke accumulation in the
house or attic before the door charred through. Without accu-
mulation outside the bedroom, there would have been no vis-
ible smoke column or smoke leaking from beneath the eaves.
The little smoke that escaped the room would have risen to
No. 15-3706 25
the attic and exited through the small roof vents without sig-
nificant accumulation in the attic. (A126–27)
After char-through, however, the dramatic increase in area
of the outflow openings (from 0.06 square meters with a one-
inch bedroom door gap, to 0.80 square meters after char-
through) meant that the smoke could no longer be vented in
full by the roof vents. Char-through would have led to smoke
accumulation in the attic, which would in turn have led to the
heavy smoke plume that the runners saw at 6:36 a.m.
Carpenter then turned to the time for the door to char
through. Recall that the State’s experts at trial had estimated
just two to four minutes, though without offering any quanti-
tative basis. Carpenter, however, obtained exemplar doors
from Lohr’s house. He conducted experiments by exposing
samples of the door panels to a range of thermal heat fluxes
(between 12 and 20 kW/m2) and recording the char-through
times. (A137–38) At 20 kW/m2, which corresponds to an up-
per layer temperature of about 350° Celsius (660° Fahrenheit),
the panel took an average of 11 minutes and 33 seconds to
char through—three minutes longer than the maximum total
duration of the fire, according to the State’s theory.5
For these figures to matter, Carpenter needed to determine
the heat flux actually produced by the fire in Lohr’s bedroom.
To do this, he considered the front window in the bedroom,
5 Carpenter’s estimate of char-through time is consistent with data in
the new NFPA 921 standard, which notes a char-through rate of 0.4 inches
per hour at a temperature of 750° Fahrenheit, or about 400° Celsius. PCR
Tr. 198. The bedroom door was about 0.3 inches thick (5/16 of an inch),
and the heat on the door could not have reached anything close to 750°
Fahrenheit in light of the lack of glass breakage.
26 No. 15-3706
which contained twelve individual glass panes. None broke,
though one pane in the side window might have cracked dur-
ing the fire. Relying on data from a study that estimated the
probability of three-millimeter glass breakage as a function of
hot temperatures, he estimated that the upper layer tempera-
ture would have been about 280° Celsius (540° Fahrenheit),
corresponding to a heat flux of 16 kW/m2. At 280° Celsius, the
probability of glass breakage is about one in twelve. Because
none of the twelve panes broke, Carpenter estimated that the
temperature had to be 280° or below, corresponding to a char-
through time of about 30 minutes.
Carpenter also considered the mattress in Lohr’s bedroom,
which was the principal fuel for the fire after the gasoline
burned off. The mattress was entirely consumed by the fire.
“If the amount of combustible mass (in units of kg) and the
mass loss rate (in units of kg/sec) are known, then an estimate
of the duration of the fire (in units of seconds) can be ob-
tained.” As noted, before the bedroom door charred through,
the fire was ventilation-limited, not fuel-limited, thanks to the
nearly closed bedroom door and the lack of another oxygen
source. Carpenter estimated that the mattress included about
20 kilograms (about 44 pounds) of combustible polyurethane
foam. (A143) According to a model for fire behavior widely
accepted by fire experts—Consolidated Fire and Smoke
Transport (CFAST)—with enough ventilation, burning such a
mattress would produce so much heat that a fire in an aver-
age-sized bedroom would proceed to flashover, which did not
occur in this case. Thus, Carpenter concluded, the mattress
had been consumed entirely before the door charred through
and allowed more oxygen into the room. (A145–46)
No. 15-3706 27
Available data showed a mass loss rate on the order of one
gram per second for flexible polyurethane foam in a closed-
door fire. (A147–48) Since the door was slightly ajar here, Car-
penter used the CFAST model to predict a faster mass loss rate
of about three grams per second for a fire in a bedroom with
a door open approximately one inch. That produces a rough
estimate of a two-hour fire to consume the entire mattress
with the door an inch ajar. Carpenter used this figure to esti-
mate an outer bound for the fire’s ignition time. Combining
the independent data from the glass that did not break, the
char-through experiments, and the mattress, he estimated
that the fire had to have been set between 4:30 a.m. and 6:00
a.m., well outside the time when Bradford could have been
responsible. The undisputed testimony of the runners who
saw a smoke column from two blocks away at 6:36, which the
majority does not mention, provides independent corrobora-
tion of Carpenter’s analysis. 6
C. Ineffective Assistance of Counsel
To show ineffective assistance of counsel, a defendant
must show (1) that counsel’s performance was constitution-
ally deficient, and (2) that the deficient performance preju-
diced the defendant. Strickland v. Washington, 466 U.S. 668, 687
(1984). Bradford has made both showings here.
1. Deficient Performance
Deficient performance means that counsel’s representa-
tion “fell below an objective standard of reasonableness.” Id.
6 The parties have also debated Carpenter’s assertion that the concen-
tration of carbon monoxide in Lohr’s dog’s blood proved that the fire had
burned longer than eight minutes. There is enough controversy about the
reliability of that analysis that I do not rely on it here.
28 No. 15-3706
at 688. A court’s after-the-fact scrutiny of counsel’s perfor-
mance must be deferential to avoid hindsight and to recog-
nize that a decision may be a matter of strategy. Id. at 689. If
counsel’s performance overall reflected “active and capable
advocacy,” establishing a claim for ineffective assistance of
counsel is and should be difficult. Harrington v. Richter, 562
U.S. 86, 111 (2011). It is not impossible. In some instances,
“‘even an isolated error’ can support an ineffective-assistance
claim if it is ‘sufficiently egregious and prejudicial.’” Id., quot-
ing Murray v. Carrier, 477 U.S. 478, 496 (1986); see also Williams
v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009).
The selection of an expert witness is ordinarily a matter of
strategy and difficult to challenge under the deferential stand-
ards of Strickland and 28 U.S.C. § 2254(d). The Indiana courts
concluded that counsel’s selection of Davie was a reasonable
strategic choice. Davie had a good reputation in the fire inves-
tigation community, and he had never before testified for the
defense in a criminal case. Bradford v. State, 988 N.E.2d 1192,
1203–04 (Ind. App. 2013). We owe deference to the state
court’s resolution of the claim as well as to counsel’s strategic
decisions.
Crucially, though, in a failing the state courts did not rec-
ognize, Davie was unable to offer a credible expert opinion on
the one question that mattered the most: whether it was phys-
ically possible for Bradford to have set the fire. And such ex-
pertise was available at the time of trial, using the information
and techniques later used by Carpenter.
By Davie’s own admission, he recognized only a single
piece of physical evidence (the door) that could help him es-
timate the fire’s duration. He apparently did not appreciate
the importance of the intact windows and the fully consumed
No. 15-3706 29
mattress. And rather than carry out an experiment on char-
through time, he just relied on the obsolete “rule of thumb”
that had been discredited more than a year before the trial.
On the fire’s duration, Davie was equivalent to no expert
at all, as the prosecutor showed during closing. We and other
circuits have found deficient performance before where coun-
sel fails to present expert evidence on a question so critical to
the prosecution’s case and his client’s defense as the fire dura-
tion was here. E.g., Thomas v. Clements, 789 F.3d 760, 769–70
(7th Cir. 2015) (effect of counsel’s failure to reach out to expert
“was to accept [prosecution expert’s] finding of intentional
death without challenge and basically doom defense’s theory
of the case”); Woolley v. Rednour, 702 F.3d 411, 423 (7th Cir.
2012) (failure to present rebuttal expert where State expert’s
testimony “effectively hollowed out the core” of defense and
“went to the heart of whether [defendant’s] version of the
shootings was physically possible”); Richey v. Bradshaw, 498
F.3d 344, 362–64 (6th Cir. 2007) (deficient performance where
scientific testimony was critical to State’s specific theory and
defense counsel hired an expert but failed to consult with him,
while other experts would have “severely undermined the
State’s case”); Dugas v. Coplan, 428 F.3d 317, 328–31 (1st Cir.
2005) (importance of challenging State’s arson case, crucial
role of arson evidence, and attorney’s awareness of problems
with the State’s case all demonstrated “inescapable need for
expert consultation in this case”); see also Rogers v. Israel, 746
F.2d 1288, 1294 (7th Cir. 1984) (“under certain circumstances,
‘it may be vital in affording effective representation to a de-
fendant in a criminal case for counsel to elicit expert testi-
mony rebutting the state’s expert testimony’”), quoting Knott
v. Mabry, 671 F.2d 1208, 1212–13 (8th Cir. 1982).
30 No. 15-3706
For a single error to qualify as ineffective assistance, it
must be sufficiently egregious and prejudicial—“an omission
of something obviously better (in light of what was known at
the time) than the line of defense that counsel pursued.” Wil-
liams, 557 F.3d at 538. Scientific testimony that exonerates a
defendant surely fits that bill, so long as it was “known at the
time.”
On that critical point, the state trial court concluded after
the post-conviction hearing that “Carpenter provides only a
new opinion on the same evidence that was available at the
time of trial.” The court also found that “the theories and fac-
tors upon which [Carpenter] based his calculations were
known or with some work could have been calculated – and
were therefore discoverable by due diligence – at the time of
trial.” The Indiana Court of Appeals agreed. Bradford v. State,
988 N.E.2d at 1199–1200.
That reasoning convinced the state courts that Carpenter’s
evidence did not qualify as “new” evidence to justify a new
trial. But that reasoning is also critical on the issue of ineffec-
tive assistance. The State cannot have it both ways. Bradford’s
bid for a new trial was rejected because the information and
analysis Carpenter has offered was available at the time of
trial. His otherwise capable counsel should have recognized
such quantitative expertise as obviously better than the weak
and equivocal duration testimony that Davie provided. As
the prosecutor correctly pointed out more than once, that tes-
timony was not based on expertise at all.
No. 15-3706 31
2. Prejudice
As for prejudice, to be entitled to habeas corpus relief,
Bradford must show it is reasonably likely that but for coun-
sel’s error, the result of the proceeding would have been dif-
ferent. Harrington, 562 U.S. at 111. The likelihood of a different
result has to be “substantial, not just conceivable,” id. at 112,
citing Strickland, 466 U.S. at 693, though Bradford need not
show that the error more likely than not altered the outcome
in the case. Id. at 111–12; Stanley v. Bartley, 465 F.3d 810, 814
(7th Cir. 2006) (petitioner’s chance of being acquitted need not
be 50 percent or greater); see also, e.g., Thomas v. Clements, 789
F.3d at 772 (finding prejudice where it was “substantially
likely that [petitioner] could have raised at least a reasonable
doubt and had a different outcome at trial”). Essentially, the
errors must be serious enough to undermine confidence in the
outcome. Cullen v. Pinholster, 563 U.S. 170, 189 (2011), quoting
Strickland, 466 U.S. at 694. The state courts did not reach the
issue of prejudice.
Bradford easily satisfies the prejudice requirement. No re-
liable scientific evidence on fire duration and char-through
time was offered at trial—not by Storey, not by Johnson, and
not by Davie. The bank camera drew a bright line at 6:34 a.m.
If the fire started earlier than that, Bradford did not light it. If
counsel had presented Carpenter’s analysis on duration and
if that evidence was scientifically valid, a reasonable jury
could not have found Bradford guilty. At the very least, Car-
penter’s analysis undermines confidence in this verdict. 7
7Bradford recognizes how difficult it is to obtain federal habeas relief
from a state conviction on a theory of ineffective assistance of counsel. He
32 No. 15-3706
D. The Majority’s Critique of Carpenter
Carpenter’s scientific analysis showing that Bradford
could not have set the fire was unscathed by cross-examina-
tion in the state courts. The prosecutor focused on trying to
show that another expert could have done the same sort of
analysis at the time of trial. That is also my point, of course,
for it is key to showing the ineffectiveness of relying on Davie.
The prosecution tried a few substantive attacks, such as trying
to show some uncertainty about the thickness of the window
glass, how similar the door samples were for the char-through
experiments, and the exact size of Lohr’s mattress. Carpenter
easily parried those, showing why his estimates were reliable
and/or that minor changes in the variables would not change
the bottom line conclusion. Not surprisingly, then, the state
trial and appellate courts did not try to engage Carpenter’s
analysis on the merits. In this federal appeal, we find the first
attempt by a court to engage Carpenter on the merits. The ma-
jority offers some new criticisms based on its own research.
None of those criticisms are serious enough to undermine the
key conclusion.
has also argued that this would be an appropriate case to decide whether
the federal constitutional guarantee of due process of law should support
an independent claim for relief based on only actual innocence, without
any other constitutional violation. See House v. Bell, 547 U.S. 518, 554–55
(2006) (question remains open); Herrera v. Collins, 506 U.S. 390, 417 (1993)
(threshold for such theory would be “extraordinarily high”); id. at 442
(Blackmun, J., dissenting) (petitioner would need to show he “probably is
innocent”). In my view, Bradford has shown that he is probably, in fact
almost certainly, innocent. The only reasons I hedge at all on his innocence
are (a) I am not a fire expert and (b) no true expert has tried to rebut Car-
penter’s analysis. Perhaps he is mistaken, but no one has shown that yet.
No. 15-3706 33
The majority’s most telling point is that Carpenter’s analy-
sis of the probability of glass breakage was wrong, and I agree
with the point. A one in twelve probability that a pane of glass
will break does not mean that in twelve separate, independent
events, one will certainly break. (In simpler terms, if you flip
a coin twice, the probability of heads is one-half on each flip
but there is no guarantee that one of two flips will turn up
heads.) Carpenter also did not explain why all twelve panes
might have been exposed to approximately the same heat
flux, given that heat rises. He also could not be sure that the
glass in Lohr’s bedroom windows was three millimeters thick,
though there is no evidence of non-standard glass in this
small and modest home. And so on.
The prosecutor did not challenge Carpenter on the proba-
bility of the window panes remaining intact. The data in Car-
penter’s report show that the probability of breakage rises
dramatically after about 275° Celsius (530° Fahrenheit). By the
time the temperature reaches about 350° Celsius (660° Fahr-
enheit)—which is not hot enough to produce a char-through
time of eight and a half minutes based on Carpenter’s tests—
the probability of glass breakage rises to about 0.6. (A140) If
each of the twelve panes had an independent six in ten chance
of breaking, the probability that none would break would be
(4/10)12, or 1.677 x 10-5—less than two in a hundred thousand.
Also, the data refer to glass breakage, meaning that pieces of
the glass fall out, further ventilating the fire. Babrauskas, cited
by the majority, also says it is fairly well-established that a
windowpane of ordinary float glass “tends to crack when the
glass reaches a temperature of about 150–200°C.” Carpenter’s
report indicates that the front bedroom window “showed no
signs of cracking.” (A138)
34 No. 15-3706
In other words, even if we correct the error in Carpenter’s
probability analysis of the glass, the State still cannot explain
how, if the fire burned hot enough to char through the door
fast enough to support its theory, all of the front window-
panes remained unbroken.
More fundamental, most of the majority’s critiques were
not even raised during the cross-examination of Carpenter at
the post-conviction hearing. Carpenter never had the oppor-
tunity to expand upon his reasoning, to defend his work, or,
if there was in fact a significant error, to explain why it might
or might not affect his ultimate conclusion.
For example, at page 6, above, the majority attacks Car-
penter for having confused floor- and ceiling-level heat flux
during his testimony. That apparent error seems to have been
limited to his testimony at the hearing. His report did not
make that mistake, nor were the report’s overall conclusions
based on it. His report makes clear that his estimate of the
char-through time is based on the intact glass. (A138) It is not
unusual even for experts (and lawyers and judges) to mis-
speak occasionally in such ways. The questioning prosecutor
did not identify the point or ask for an explanation.
The majority also criticizes Carpenter for failing to explain
why, since heat rises, all the windowpanes would have been
exposed to the ceiling level heat flux. One could just as easily
say it is not clear why the entire door panel from top to bottom
would have been exposed to the ceiling level heat flux, given
that the door, like the window, extended down from the ceil-
ing into what were presumably slightly cooler temperatures.
More to the point, Carpenter simply was not asked to justify
his assumption. We do not know why he made it, whether it
No. 15-3706 35
was appropriate, or whether changing it would have a signif-
icant effect on his conclusion.
In contrast, one such critique was raised on cross-exami-
nation—Carpenter’s assumption that the window was made
of plain three-millimeter glass. He parried the attack easily,
noting that tempered glass “isn’t traditionally used in residen-
tial situations,” and that three millimeters is a typical thick-
ness. This seems a reasonable explanation to me, and it sug-
gests Carpenter may well have been able to rebut the major-
ity’s other critiques if he had been asked about them.
Carpenter’s evidence is not perfect. It depends on certain
assumptions and estimates, both because of the passage of
time and because the behavior of an uncontrolled fire can be
difficult to pin down. But his evidence is powerful. It is the
only analysis of the fire’s duration based on empirical data,
derived from actual tests instead of conjecture, obsolete rules
of thumb, or inexact witness guesstimates. His analysis is
quantitative and testable. His results appear to be so defini-
tive that minor adjustments for surprisingly thick glass or
having the bedroom door open a little farther could not solve
the basic problems with the State’s theory.
To cause the physical damage within the State’s eight-and-
a-half-minute maximum burn time, the fire would have had
to have been much more intense, consuming the entire mat-
tress in just a few minutes and resulting in broken windows
and the flashover that the experts agree never happened. And
there is no plausible explanation how the fire in the nearly
closed bedroom could have produced, in no more than 90 sec-
onds, a heavy smoke plume visible to the runners more than
two blocks away. To explain that smoke plume at all, the char-
through time would need to be measured not in minutes but
36 No. 15-3706
in seconds. And that would mean in turn that the fire would
have been ventilated almost from the beginning, contrary to
all the fire experts’ views, and it would have reached flash-
over, which did not happen.
If we are going to apply our own analysis to Carpenter’s
analysis, we also should not close our eyes to the grisly report
from Dr. John D. DeHaan, which focuses on the fire damage
to Lohr’s body. His analysis, based on the autopsy report and
tests that have been done by exposing human cadavers and
the bodies of other animals to flames, corroborates Carpenter.
DeHaan found that the heavy fire damage to Lohr’s body was
inconsistent with a fire of only five to seven minutes and was
“much more consistent with a fire exposure of approximately
20 minutes to direct flames”—or perhaps to a much longer
fire, one of reduced intensity due to the ventilation limits on
the fire in this case. (A179)
* * *
To sum up, even if Carpenter’s analysis has a couple of mi-
nor errors in it, his analysis is the only analysis of the fire’s
duration with a scientific and empirical basis. His conclusion
appears sound, and the State did not show otherwise. If it is
correct, it exonerates Bradford. In a new trial, the State would
have the chance to attack the scientific analysis on its merits.
Perhaps the State would then be able to show that Carpenter’s
work is not to be trusted. Or perhaps it could present, finally,
an expert who could explain in reliable scientific terms how a
fire could have done the damage this fire did so quickly with-
out leaving unmistakable signs of a much hotter fire.
Given the state court’s conclusion that the analysis Car-
penter provided was available at the time of the original trial,
No. 15-3706 37
I would treat the failure to seek and find such critical expert
evidence as ineffective assistance of counsel. In the alterna-
tive, I would treat this case as appropriate for an actual inno-
cence grant of habeas corpus. We should order issuance of a
writ of habeas corpus directing that Bradford be released or
retried.