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Erasmo Gutierrez

Other arson exonerations
On the evening of January 16, 2002, 39-year-old Erasmo Gutierrez, a maintenance worker for the Homewood Suites and Hampton Inn hotels in Peabody, Massachusetts, was at the Homewood Suites when he was summoned to the Hampton Inn to investigate a power outage. As Gutierrez was walking to the hotel, he spotted a fire in a third floor window.

The on-duty assistant manager at the Hampton Inn, Yessemy Zenon, saw Gutierrez in the Hampton lobby after a fire alarm went off and before the fire department arrived. Zenon believed the alarm was on the second floor and that Gutierrez went to check it out.

At 7:50 p.m., the Peabody fire department was notified of the fire. Captain Joseph Daly was the first to arrive, a few minutes after 8 p.m. When Daly got to the third floor, he saw Gutierrez holding a fire extinguisher and backing out of room 318 while closing the door. Gutierrez used a key card to open the door for Daly, who backed out and left to shut off the sprinkler system.

Fire department Lieutenant John Hosman and firefighter Michael Hayes arrived at Room 318. After they determined there were no occupants, Hayes broke open a window to ventilate the room. Daly left the room to shut off the sprinkler system. When he returned, he found that the firefighters were locked out of the room. Daly walked down to the lobby to find Gutierrez to get access to the room. Gutierrez used a key card to open the room for them. After that, the door was propped open with a wedge.

About 8:30 p.m., fire department inspector and electrician Frank D’Amico arrived to investigate the cause of the fire. The power to the hotel was still out. He used a flashlight to conclude that the fire started at the base of the heating, ventilation and air-condition (HVAC) unit. He later said that the burn pattern on the floor “did not look right.”

Informed that the room was unoccupied by any guests at the time, D’Amico inspected five other unoccupied rooms. In three of the rooms, the HVAC units were turned off. In the other two, the heat function was turned on, but the thermostats were turned all the way down, and were not running.

D’Amico returned to room 318, removed the melted cover from the HVAC unit and pushed the heat setting. The “off” button popped up, indicating to him that the unit was off at the time of the fire. Based on that, combined with the condition of the rug underneath the unit, D’Amico ordered everyone out of the room, taped off the hallway with yellow crime scene tape and called the state police fire investigator, Paul Horgan.

While waiting for Horgan, D’Amico searched the maintenance closet. He spotted a bottle of isopropyl alcohol. He would later say it caught his “fancy” because it didn’t seem appropriate for that closet.

Horgan arrived around 10:30 p.m. He summoned an accelerant detection canine. The dog alerted to a spot on the floor beneath the HVAC control panel. Horgan then concluded that the fire originated on the carpet rather than the HVAC unit. A sample of the rug was removed and submitted to the state police crime laboratory.

D’Amico then went back to the maintenance closet and seized the bottle of isopropyl alcohol.

Tests on the sample of the rug were negative, however, for the presence of any accelerant. Even so, Horgan concluded the fire was intentionally set.

At about 1:45 a.m. on January 17, Horgan interviewed Gutierrez, who said that he had arrived at work at 6 p.m. the previous evening, and completed tasks at both hotels, including plunging a toilet in a guest’s second floor room at the Hampton. He recounted how he had been summoned to investigate the power outage, spotted the fire, grabbed the fire extinguisher, and headed upstairs. On the way, Zenon radioed him that he thought the fire was in room 218. Gutierrez said that when he got to room 218, he saw water dripping from the ceiling and realized the fire was in the room above. He went up to 318, but his keycard did not work. He said he went back to the front desk to get a working master key, and then ran up the stairs to room 318.

Gutierrez said that by the time he entered room 318, the fire had been extinguished by the sprinkler system. He said he left the room and waited for the firefighters to arrive.

Later that day, following further examination, Dennis Toto, an electrician and fire investigator, said that the HVAC unit was properly installed. Informed that the unit was turned off at the time, Toto reported that “this confirms that there was no electrical ‘load’ stressing the wiring or controls.” Although there was damage to the electrical wires, he concluded the damage was caused by the fire as opposed to the wires causing the blaze.

Horgan asked the hotel’s general manager, Christopher Scott, to audit the hotel keycard system, called TESA, for room 318. A printout showed three entries with an employee master keycard within three minutes of each other: 8:38 p.m., 8:39 p.m. and 8:41 p.m. A fourth entry was recorded at 9:28 p.m. and the final entries recorded were at 11:33 p.m., 11:35 p.m. and 11:47 p.m.

Because those times did not seem correct, Horgan and Christopher synched the TESA program to their watches and determined that the TESA program was running one hour and 12 minutes fast, due in part to the failure to adjust for daylight savings. After subtracting 72 minutes from the timestamps, Horgan adjusted the times to show initial entries at 7:26 p.m., 7:27 p.m., and 7:29 p.m. – before the fire alarm was sounded.

Later on January 17, Horgan sought out Gutierrez, but he was not home. When Gutierrez learned of the visit, he went to the Peabody police department, and a meeting was scheduled for January 19.

By the time Gutierrez showed up on that day at 12:15 p.m., Horgan had concluded the fire was arson and that someone had used a hotel employee keycard to enter the room before the fire.

After three hours of interrogation, the officers accused Gutierrez of setting the fire and confronted him with the keycard records. At about 4:30 p.m. state police trooper Paul Zipper, who had a PhD in sociology, experience in arson fire interrogations, and had taught police how to interrogate in fire investigations, told Gutierrez that all the evidence pointed to him as the one who set the fire.

At about 5 p.m., Gutierrez said he set the fire by lighting a curtain on fire with a match. However, he could not explain how the fire progressed from there. When the officers told him that was not consistent with the evidence, Gutierrez said, “I didn’t light the fire.”

Asked why he had said that, Gutierrez said, “I don’t know. I just said it.”

Zipper then told Gutierrez a lie – that a hotel guest had seen “a clean-cut handsome Mexican man” enter room 318 and that if he confessed, he could go home. Gutierrez adamantly denied that he had entered the room before the fire broke out. But after 20 more minutes of interrogation, Gutierrez said that before the fire alarm went off, he went into room 318 with his master keycard, poured about a half an ounce of isopropyl alcohol on the floor in front of the HVAC unit, ignited it, and left.

According to Zipper’s later account, Gutierrez said he got the alcohol from a second floor maintenance closet. After leaving room 318, Gutierrez said he went to room 216 to unclog a toilet, all the while concealing the bottle of alcohol under his jacket, before returning it and the plunger to the second floor closet. He said he walked back to Homewood Suites and remained there until Zenon called about the power outage.

Zipper later reported that Gutierrez said he started the fire because he was stressed about his wife’s family visiting, that his work hours had just been reduced, that he had just finished unclogging a toilet, and “he was feeling out of control.”

That account contradicted the statement which said the toilet was unclogged before the fire was set. Evidence would later show that Gutierrez’s hours were reduced at his own request because he had a full-time job at another hotel.

Trooper Horgan wrote out the statement by hand, and Gutierrez signed it a few minutes before 7 p.m. Gutierrez was shown two bottles of isopropyl alcohol, and he identified one with a CVS drug store label. The bottle was the same one that D’Amico had confiscated from the maintenance closet.

Gutierrez then gave a tape-recorded confession. In this version, he said he unclogged the toilet on the second floor prior to setting the fire. At Horgan’s direction, Gutierrez wrote a letter of apology and drew a diagram of room 318 with an “X” where he set the fire. The diagram was captioned: “I poured the alcohol and submitted the fire here.” Gutierrez was then allowed to leave the police station.

On January 23, 2002, he was arrested. On February 27, 2002, Gutierrez was indicted on charges of arson and breaking and entering.

In May 2004, Gutierrez went to trial in Essex County Superior Court. The prosecution presented the keycard records, as well as the fire investigators’ conclusions that the fire was set.

Toto testified that the physical characteristics of the burn showed that the fire burned “sideways and down” onto the rug. This indicates a combustible material had been used and the fire was not accidental. He said that if the fire had been caused by the HVAC unit, the fire would have turned upward in a distinctive “V” pattern instead of burning sideways and down toward the floor.

State police crime laboratory chemist John Drugan testified that while no accelerant was detected in the rug sample, it was not unusual for isopropyl alcohol to burn up and leave no trace.

The linchpin was Gutierrez’s confession to setting the fire.

Gutierrez’s defense lawyer did not consult with an arson expert. He accepted the prosecution’s version of the cause of the fire, and only disputed that it was Gutierrez who set the blaze.

The defense accused the prosecution of “cherry picking” times from the keycard records to implicate Gutierrez, and argued that there were other people in the hotel who could have had access to the room. The defense did not cross-examine Scott, the general manager, about records showing that the keycard system was so out of kilter that it showed guests entering their rooms a half-hour before cards had been created.

On May 10, 2004, the jury convicted Gutierrez of arson and breaking and entering. He was sentenced to one to two years in prison, followed by three years of probation. He was released from prison on February 16, 2006.

In 2018, Gutierrez reached out to the Boston College Innocence Program (BCIP), directed by Professor Sharon Beckman, and an investigation of the case began.

On January 4, 2022, BCIP staff attorney Charlotte Whitmore, and Lauren Jacobs, a legal fellow, aided by students in the program, filed a motion for post-conviction relief. The motion said that a re-examination of the keycard records showed that there were no entries into room 318 prior to the report of the fire.

Michael Higgins, a fire investigation expert, concluded that the fire could not have possibly started in the manner that Gutierrez described in his confession.

One-half an ounce of isopropyl alcohol “would have burned very quickly and could not have generated enough heat energy to melt the HVAC unit and catch the curtains on fire, as happened here,” Higgins declared.

Higgins said D’Amico and Horgan misread burn patterns, and that “no amount” of isopropyl alcohol could have created the burn pattern on the floor. He also said the canine alert was likely caused by the dog sensing “pyrolysis products,” which are strong odors that result from burning synthetics such as the rug.

Higgins concluded the fire was most likely caused by shorted wires feeding into the HVAC unit, located in an uncovered electrical box several inches above the floor. Those wires were constantly drawing power even if the unit was turned off, Higgins said.

Matthew Jones, a false confessions expert, reviewed the case and concluded there were “situational and dispositional risk factors and improper police practices” which resulted in the false confession. These included the “confrontational/accusatorial” nature of the interrogation, the seven-hour duration, the presentation of false evidence, and the use of forced choice questions. Such questions included, “Did you use a match or a lighter?”

The motion for post-conviction relief noted that in 1998, in another case involving an arson of a dwelling, Zipper had obtained a confession following an interrogation that was not recorded. In that case, Zipper had confronted the suspect with false evidence. In that case, the Massachusetts Supreme Judicial Court declined to mandate the recording of interrogations, but did rule that defendants were entitled to a jury instruction that jurors should view such confessions following unrecorded interrogations with caution.

Further, BCIP’s analysis of the keycard records and the testimony of the firefighters showed that no one entered the room prior to the fire alarm going off, and thus, the fire must have been accidental.

“Eighteen years after Mr. Gutierrez’s convictions, an analysis of the keycard records demonstrates that no one entered room 318 prior to the fire, the fire must have been accidental, and thus Mr. Gutierrez is innocent,” the motion declared.

On November 1, 2022, Commonwealth attorney Kathryn Janssen filed a response on behalf of the prosecution, agreeing that the conviction should be vacated. The response noted that the post-conviction motion was “predicated, in part,” on the failure of Gutierrez’s defense attorney to adequately investigate the keycard records. “[H]e failed to flush out and explain an alternative reading of the hotel keycard records that would have directly undermined a substantial part of the Commonwealth’s case,” the response said.

On November 19, 2022, the defense motion was granted, Gutierrez’s convictions were vacated, and the case was dismissed.

In July 2023, Gutierrez filed a claim for state compensation.

– Maurice Possley

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Posting Date: 5/5/2023
Last Updated: 5/7/2024
Most Serious Crime:Arson
Additional Convictions:Burglary/Unlawful Entry
Reported Crime Date:2002
Sentence:1 to 2 years
Age at the date of reported crime:39
Contributing Factors:False Confession, False or Misleading Forensic Evidence, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No