Lawyer: Doubt led cops to wait 14 years to charge arson

Why, defense lawyer David Fryman asked a jury Thursday, did police wait 14 years to charge Daniel Dougherty with setting the 1985 fire that killed his two young sons?

Only hours after the Oxford Circle blaze, investigators had interviewed the witnesses and determined that the cause was arson. The case, supposedly, Fryman said, was murder - the horrendous killing of two little boys, in their bed, by their own father.

Then why did they wait?

They waited, Fryman said, because they had doubt.

The 14-year delay in lodging charges occurred because authorities had a reasonable doubt - the same doubt that jurors should have, and for which they should find Dougherty not guilty, Fryman said.

On Thursday, the arc of a contentious and emotional Common Pleas Court retrial neared its conclusion, as defense and prosecution argued their interpretations of the evidence in the three-decade-old fire.

After hearing closing arguments, the jury deliberated for one hour and 45 minutes. It resumes discussion Friday.

In 2000, Dougherty was tried, convicted, and sentenced to death for killing 3-year-old John and 4-year-old Daniel Jr. in their Carver Street rowhouse. His death sentence was reduced to a life sentence in 2012. Dougherty's retrial came after an appeals court ruled that his original trial lawyer's failings were so substantial that no reliable finding of guilt or innocence occurred.

Dougherty, 56, did not testify in his own defense this time.

Prosecutors say he set the fire to hurt two women - his girlfriend, Kathleen Schuler, who owned the home, and the boys' mother, Kathleen Dippel, from whom he was separated. In anger over their rejections that night, he destroyed the house of one and the children of the other, prosecutors said.

The defense contends that 30 years ago, Assistant Fire Marshal John Quinn got it wrong, and that burn patterns that seemed like proof of arson in 1985 were known by 2000 - and certainly today - to be proof of nothing.

Assistant District Attorney Jude Conroy, who earlier conducted a mocking and sometimes shouting cross-examination of an expert defense witness, opened his argument with an apology to the jury.

"If there's anything I did during the course of my presentation that offended you, I apologize," he said.

Conroy soon was shouting again, attacking the testimony, motivation, and character of nationally known consultant John Lentini, head of Scientific Fire Analysis L.L.C. in Florida. He testified that extensive damage made it impossible to know where or how the fire began. The cause should have been classified "undetermined," he said.

Conroy noted that Lentini testified he brought no bias to investigations. But the fire expert blanched when confronted with his testimony from a different trial, where he said he always at first assumed the cause of a fire to be accidental.

"This is disgraceful," Conroy thundered, "this is lying, this is perjurious!"

He called Lentini a "modern-day charlatan," an "alchemist" who was "fumbling like Elmer Fudd" and who would "whore himself and say anything" in exchange for a consultant's fee.

The prosecution relied on Quinn's 1985 findings, and on fresh support of those determinations by consultant and former Fire Marshal Thomas Schneiders.

Quinn, who was too ill to testify, and Schneiders, who reviewed the case file, said burn patterns definitively showed the fire was set in three places - a sofa, a love seat, and under a dining-room table.

Dougherty has always said he awoke to a house on fire, ran outside, then tried desperately to save his sons.

Conroy attacked that account Thursday, noting that when Dougherty drank - and he was drinking that night - he grew "beer muscles" and hit his wife and girlfriend.

With his children in danger, "what does big, tough Dan Dougherty do?" Conroy asked. "He didn't run up the stairs for the little boys. This night was about Dan Dougherty."

Nearly 31 years later, he said, the jury should find Dougherty guilty, for the children.

Fryman argued that, although conflict occurred between Dougherty and his estranged wife and live-in girlfriend that night, it was silly to think that would make him kill his own children.

What's changed between that night and now, Fryman said, is what modern experts like Lentini have learned: "Fire investigators are getting it wrong."

He cited Lentini's testimony about a federal test - criticized by the prosecution as a poor training exercise - in which a fire was set and extinguished in a mock bedroom. Only three of 53 experienced firefighters could correctly identify the quadrant where the fire began.

"That's how hard it is to read these burn patterns," Fryman said. "There's absolutely no way anyone can say there are three separate fires here."

jgammage@phillynews.com

215-854-4906

@JeffGammage