.jpg) Herbert Landry On the afternoon of February 26, 2006, firefighters were called to extinguish a blaze at the Shadow Wood Apartment Complex in Provo, Utah. Although the investigation of the cause of the fire was still in progress, police focused on 46-year-old Herbert Landry as the person who started the fire after two building residents said they saw him leaving the building shortly before the fire broke out.
Landry had been living in the complex after he was displaced from his home in New Orleans by Hurricane Katrina. Before the hurricane hit, Landry sent his wife and children to stay with relatives in Texas. He chose to stay to protect his home and property, but after the storm he was stranded on his roof for several days.
He was rescued, but his home and all of his family’s belongings were destroyed. He was moved to the Superdome with thousands of others. Ultimately, as people were dispersed from the stadium, Landry was flown to Camp Williams in Salt Lake City and he accepted an offer from the Federal Emergency Management Agency (FEMA) to move into the Shadow Wood Apartment Complex in September 2005. FEMA paid the rent as well as a small stipend for living expenses.
Landry sent much of the money to his family, but after two months, he had saved enough to travel to Texas to see his family. He remained there for three months and then decided to give up FEMA assistance and moved to Texas rather than move his family to Provo.
In late January 2006, Landry returned to his apartment to pack his belongings and leave. The landlord assumed that Landry had left for good, so the locks had been changed. Landry broke a window to get in and the police were called, but were satisfied that Landry was not a burglar. However, the landlord told Landry that he would be evicted.
Because Landry had already decided to move to Texas, he and the landlord agreed that he would vacate the apartment on February 26 and they would meet at 9 p.m. for a final walk-through. On that day, Landry visited friends to say goodbye, and then returned to the apartment to pack his clothes, medications and financial records. A friend drove him to a hotel where he got a room to spend the night and waited until it was time to return to the apartment to meet his landlord.
The fire broke out about 4:30 p.m. After the fire was extinguished, two neighbors told investigators that Landry was being evicted, that he was leaving for Texas and that he had left the complex not long before the fire broke. Another resident who knew Landry said he saw a tall skinny black man that he did not recognize knocking on Landry’s door not long before the fire erupted. The police did not follow up on the report of the man knocking on his door, and instead focused their attention on Landry.
Meanwhile, Landry turned on the television in his motel room and saw a news report of the fire that said he was suspected of starting the blaze. Landry went immediately to the apartment and introduced himself to a police officer who sent him to the police station to be interviewed.
At the station, Landry explained his whereabouts that day and denied setting the fire. He said that because the locks had been changed and he had not been given a new key, he kept the apartment unlocked. As a result, he said, anyone could have gotten inside.
Meanwhile, at the complex, fire investigators searched Landry’s room. They decided that the fire started in the bedroom because of burn patterns that they believed showed that a flammable liquid had been poured on the floor. The investigators brought “Oscar,” an “ignitable liquid smelling” dog. The dog alerted to three locations in the bedroom and samples of the floorboards were removed and sent to the crime lab for testing.
Police went to Landry’s motel room where Oscar alerted to a shoe and a sock, which were sent to the lab as well. No other evidence from the apartment or the motel room was preserved.
The following day, although the laboratory tests failed to identify any flammable liquids in the flooring or on his clothing, Landry was arrested and charged with first-degree aggravated arson.
He went to trial in Salt Lake County District Court in August 2006. Tenants and the landlord testified that Landry was being evicted and that he had been seen leaving the building just before the fire started. Fire investigators testified that there were patterns indicating that a liquid had been poured on the floor and flowed across the room before it was ignited.
The dog handler testified that Oscar alerted three times in the bedroom and to Landry’s shoe and sock. The handler did not mention that no flammable liquids had been identified in laboratory testing of those items, but he did tell the jury that Oscar was more sensitive and accurate than laboratory testing equipment.
The defense called the resident of the complex who said he saw a tall skinny black man who was not Landry knocking on Landry’s door shortly before the fire was discovered. Landry testified as well and denied setting the fire.
On August 16, after a two-day trial, Landry was convicted of first-degree aggravated arson. He was sentenced to five years to life in prison.
Landry’s appeals were denied. In 2010, after seeking assistance from the Rocky Mountain Innocence Center, attorneys Cory Talbot and M. Benjamin Machlis filed a post-conviction petition seeking new trial.
The petition cited evidence that the fire investigators’ testimony about pour patterns being created by flammable liquids was based on outdated and unproven arson theories that scientific testing had debunked.
The petition contended that Landry’s defense attorney at trial had provided an inadequate legal defense by failing to call an arson expert as a witness or even consulting one to assist in cross-examining the prosecution’s fire investigators. Landry’s attorney had admitted during the trial that she knew very little about arson. The petition also said the defense attorney should have objected to the testimony about the dog alerts because the alerts were not corroborated by positive findings by laboratory tests.
The trial judge dismissed the petition, but the Utah Court of Appeals reversed and sent the case back to the trial court for a hearing. At the hearing, an arson expert testified for the defense that the fire should not have been classified as arson because the evidence relied upon by the fire investigators was invalid and unproven.
An arson expert called by the prosecution agreed that the fire investigators were wrong to have relied on the pour patterns, but ultimately the judge ruled that there was insufficient evidence to undermine Landry’s conviction and dismissed the petition again.
In July 2016, the Utah Court of Appeals reversed the trial judge again. The appeals court granted the petition, vacated Landry’s conviction and ordered a new trial.
The appeals court ruled Landry’s lawyer had provided an inadequate defense by failing to object to the testimony about the dog alerts. “The olfactory abilities of canines might, in some respects, be more sensitive than scientific equipment,” the court said, “but whatever the sensitivity of a dog’s nose, evidence of an accelerant detection canine’s alerts has not yet been accepted as admissible proof of arson without independent corroborating laboratory testing.”
The appeals court also ruled that Landry’s trial defense attorney should have consulted with an arson expert and called the expert as a witness at trial.
By that time, Landry was no longer in prison. He had been released on parole in February 2014 and moved to Texas to live with his family.
On January 24, 2017, the prosecution dismissed the charge.
– Maurice Possley
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