Dugas v. Coplan

• Citation: 428 F.3d 317
• Decision Date: 31 October 2005
• Docket Number: No. 04-1776.,04-1776.
• Parties: Peter DUGAS, Petitioner, Appellant, v. Jane COPLAN, Warden of the New Hampshire State Prison for Men, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 317

428 F.3d 317

Peter DUGAS, Petitioner, Appellant, v. Jane COPLAN, Warden of the New Hampshire State Prison for Men, Respondent, Appellee.

No. 04-1776.

United States Court of Appeals, First Circuit.

Heard January 4, 2005.

Decided October 31, 2005.

COPYRIGHT MATERIAL OMITTED

Daniel A. Laufer, for appellant.

Stephen D. Fuller, Senior Assistant Attorney General, with whom Kelly A. Ayotte, Attorney General, was on brief, for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

Peter Dugas was convicted of arson in New Hampshire state court. He petitioned for a federal writ of habeas corpus on the grounds, inter alia, that he had received constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court found that trial counsel's performance was deficient, but found no prejudice, granted summary judgment against Dugas, and denied the petition. We agree with the district court that counsel's performance was deficient, but conclude that further proceedings are needed in the district court to determine whether the error resulted in prejudice within the meaning of Strickland.

I.

Peter Dugas was the manager and part owner of Dugas Superette, a grocery store in Nashua, New Hampshire, owned principally by Dugas's father, Edgar Dugas.¹ On October 23, 1998, just before midnight, the Nashua Fire Department responded to a three-alarm fire at the store. The firefighters forced entry through locked doors and observed heavy smoke throughout the building. They opened a closed (but unlocked) door to the basement and discovered considerably thicker smoke and extreme heat, which indicated that the source of the fire was downstairs. They ventilated the basement and extinguished the fire.

A. The Fire Marshal's Investigation

In the early morning of October 24, Inspectors Brian Donaldson and Richard Strand of the Nashua Fire Marshal's Office arrived to investigate the fire. The basement was still full of smoke, and the firefighters were ventilating the basement with a mechanical fan in the stairway. After examining the exterior of the building and allowing some time for the smoke to dissipate, the inspectors entered the building and quickly determined that the fire had originated in the basement. They examined certain obvious potential sources — the furnace, an oil tank, the hot water tank, some electrical equipment, and an electrical panel — and ruled them out because that area of the basement had not suffered any charring or flame damage. Further investigation narrowed the source of the fire to the southeast corner of the basement, in a pile of papers on the floor in front of a set of shelves. They separated the pile of papers into smaller piles in a center aisle in the basement so as to better examine the stack, and determined that the outer edges of the pile were burned, but the inside, where the pile had been tightly packed, was not burned. They also observed an electric clock that had stopped at 10:44 PM, apparently because a circuit breaker tripped after fire damaged the wires.

Using techniques of fire "cause and origin" investigation, the inspectors ruled out natural causes (such as lightning, magnified sunlight, bacterial spontaneous combustion, or static electricity) and accidental causes (such as mechanical devices, heating devices, electrical equipment or wires, or discarded cigarette butts). They noted that the basement was filled with thick smoke and unusually high carbon monoxide levels. Since there was little flame damage outside the immediate area of the pile, the inspectors theorized that the fire had begun quickly but then became oxygen-starved and reduced to a smolder, which was how the firefighters found it.

When the inspectors concluded that the fire had been intentionally set, they decided to gather further evidence. They summoned a canine handler and fire investigator with the State Fire Marshal's Office, who arrived with a dog trained to detect petroleum distillates, which can be used as fire accelerants. The dog "alerted" to parts of both the original pile of papers and the parts that had been moved aside. The inspectors removed samples of those sections for laboratory analysis, and placed them in five airtight containers.

Inspector Strand brought the samples to Morris Boudreau, a forensic chemist at the State Police Forensic Laboratory. Boudreau detected that some, though not all, of the samples contained ignitable liquids medium petroleum distillates in some, and normal alkanes in others.² Both classes of fluids can be used as fire accelerants.

B. The Insurance Investigation

The companies that insured the market and separately-owned video and pizza concessions within it hired James Eddy, a private fire investigator, to conduct an independent cause and origin investigation of the fire. Eddy arrived at the market on October 27 and, like the Nashua fire inspectors, quickly determined the approximate area of the basement where the fire originated. Like them, he eliminated natural and accidental causes early on, and concluded that the fire had been intentionally set at the pile of papers. Out of an abundance of caution he contacted Nathaniel Johnson, an electrical engineer specializing in electrical fire investigation, to examine the electrical system. Johnson determined, after exhaustive study of every inch of wire in the basement, that it was definitely not an electrical fire.

Eddy also took samples of the charred paper, wood, and other items from the basement for analysis at an independent laboratory in Massachusetts. However, he never had the chance to send the samples to that lab. The Nashua Police Department wrote to the store's insurers, requesting all evidence that Eddy had collected. The insurers directed him to comply. He never received any information from the state regarding the analysis (if any) performed on his samples, but later testified that "it's my understanding that all of my samples were negative."

C. The Videotape

The store had a video surveillance system, albeit, as it turns out, a barely serviceable one. The system used a multiplexer to produce images from several different cameras and record them on an obsolete, belt-driven video tape recorder that could no longer generate an accurate synchronization signal and had other flaws. Worse yet, the store's practice was to continually rewind and re-record over the same tape, which not only degraded and wore out the tape (the image had become virtually undecipherable) but also meant that a recording from one day might be (and, in fact, was) followed with a leftover recording from an earlier day. Moreover, since the system did not time stamp the recordings, it was impossible to determine when a given image was recorded. In short, the system produced unreadable, undated, and difficult-to-interpret images.

The Nashua police hired an electronic surveillance specialist to attempt to decipher the tape, but it was beyond even his technical capabilities. He referred it to Tom Edwards, a forensic video analyst who specializes in image enhancement. Edwards found that the tape's timing was off (i.e., one second on the tape did not correspond to one second in the real world) and that, because of the multiple rerecordings, the sequencing was unreliable as well (i.e., the fact that one image came after another on the tape did not mean that the second image actually happened after the first image; in fact, it could have been a leftover from a previous taping days or months before). Edwards attempted to extract a usable sequence of events from the tape, adjust the speed to match real time, and enhance the images to make them more legible. The enhanced videotape appeared to show that Dugas left the store for the night with another employee; returned three minutes later; entered an office at the back of the store; reappeared sixty-two seconds later; briefly appeared in the camera's field of view again; and then ran towards the back of the store. The tape then went blank, presumably because of a loss of power to the camera. Because it was undisputed that Dugas and the employee had left the store just minutes after 10:00 PM, the police interpreted the events shown on the tape as happening at that time.

D. The Police Investigation

Dugas was present outside the market while the firefighters were putting out the blaze. He spoke briefly with Inspector Strand at the scene and signed a form consenting to a search to allow the inspectors to further investigate the fire. Inspector Strand described Dugas as "visibly shaken by the fire," but cooperative regarding Strand's questions. Dugas was also formally interviewed by Eddy (the private fire investigator working on behalf of the insurers) and a special investigator directly employed by the insurers.

On October 24, the day after the fire, a Nashua police fingerprint specialist visited the scene. He took two bottles of lighter fluid for latent fingerprint analysis. One bottle did not reveal any prints, and the other revealed prints that were unusable due to their poor quality. Although a Nashua police detective visited Dugas at his house that same morning, the detective did not ask for consent to search the house, nor for the clothing Dugas had worn the previous night.

Detectives twice interviewed Dugas and tape-recorded the interviews. Each time, Dugas described how, on the night of the fire, he had locked up the store shortly after 10:00 PM and left the building with an employee. He described driving to the Nashua Mall to make his night deposit at about 10:20 or 10:25, then passing by the store again on his way home about ten minutes later. He left home again at approximately 11:30 PM to pick up his daughter at the mall. Just after he picked her up, his wife called him on his cellular phone to tell him about the fire. He stated that he had not returned to the store...