Monday, February 16, 2009

DA's Decision Leaves Many With That Empty Feeling

Not since Mrs. O'Leary's cow knocked over that lantern and started the Great Chicago Fire have so many people thought they knew how something began and been so powerless to do anything about it.

Judging by comments posted on other local websites such as Edhat and Noozhawk, the reaction to Friday afternoon's announcement by Santa Barbara County District Attorney Christie Stanley that no one would be prosecuted for starting the Tea Fire has ranged from mild disappointment to unmitigated outrage.

All of the evidence points to the fact that Stanley knew that her decision not to charge anyone with starting the fire would be an unpopular one. For starters, rather than call a news conference and answer questions, she made the announcement via press release (or perhaps we should call it a "burn notice?") that no charges would be brought. And she issued the release around 2:30 on a Friday afternoon. A Friday afternoon that preceded the start of a three-day weekend.

That time is usually reserved for making announcements one hopes get buried, like telling the country that Scooter Libby's sentence is going to be commuted.

The victims of the fire certainly deserved better than that. Bad news should be delivered personally.

While the delivery of the message left a lot to be desired, the substance of what Stanley had to say really shouldn't have come as a surprise.

And yes, I'm the guy who wrote back on December 11; "The investigation could easily end with no one being charged with anything." I also warned at that time; "prepare to be disappointed."

It's not that I was privy to any "inside information." I wasn't. I just know that proving that someone started a camp fire, extinguished it, and then some 12 hours later a fire broke out at that location isn't enough to find them guilty of arson. And the district attorney only has the authority to charge people with crimes, not to pursue them to establish monetary liability for damage their negligence may have caused to individual citizens.

Charging someone with arson requires evidence of intent and causation. In evaluating the case, Stanley and her team undoubtedly had in mind jury instructions and case law that have defined the crime of arson.

Arson is defined as, "willfully and maliciously setting fire to or burning or causing to be burned ... any structure, forest land or property."

Arson's "malice" requirement ensures that the setting of the fire must be a deliberate and intentional act, as distinguished from an accidental or unintentional ignition or act of setting a fire.

To find someone guilty of arson requires that the DA establish a culpability standard transcending recklessness. And while "accidentally" starting a fire may be sufficient to establish liability in a private civil suit, it won't support conviction of the crime of arson.

I'm not aware of any claim that the Tea Fire was started with the intention of burning anything down. It was, if anything, an accident thereby making the possibility of arson charges being filed a proposition that was DOA.

With arson being out of the question from almost the beginning of the investigation, the only real question before prosecutors had to have been whether there was sufficient evidence to charge the 10 suspects with a lesser crime, that of "unlawfully causing a fire."

The offense of unlawfully causing a fire covers reckless accidents or unintentional fires, which, by definition, is committed by a person who is "aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property." For example, think of a person who recklessly lights a match near highly combustible materials.

Although unlawfully causing a fire doesn't require the elements of intent or malice that arson does, it nevertheless requires proof of causation. In fact, Stanley's press release focused solely on the question of causation.

Causation and its sub-concepts of "legal cause," "proximate cause" and "cause in fact" are some of the murkiest in the field of law. And in terms of what the actual evidence in this case is, you know as much as I do.

Apparently, based on the results of the investigation, Stanley felt the causation link was weak and didn't believe she had enough to charge anyone with unlawfully starting a fire. Instead she settled on filing charges of criminal trespass and unlawfully building a camp fire. Those are misdemeanors and a finding of guilt will fall short of establishing that the person or persons involved caused the resulting Tea Fire.

The DA's decision not to prosecute certainly doesn't foreclose the civil lawsuits that will inevitably be filed. And once those cases are filed I'm sure that the lawyers involved, unlike Stanley, will be more than happy to take questions.
© 2009 by Craig Smith and