The Heat’s Off: Trial in fatal blaze raises questions about city fire probes

By Van Smith

Published in City Paper, May 29, 2002

In the middle of a cold night in February 2001, a fire broke out in an apartment in Cylburn, a neighborhood near Pimlico. The dwelling was well known to Northern District police. It’s where Leonie Barnes lived and fought regularly with her longtime lover, Donald Morton, drawing officers time and again.

Arrests for assault – including a stabbing three years ago in which Barnes accidentally drove a butcher knife into Morton – had become a ritual at the apartment.

So when firefighters found Donald Morton engulfed in fatal flames on Barnes’ kitchen floor, another fire in the bedroom, and a half-empty bottle of nail-polish remover with matches nearby, it didn’t take them long to conclude that it was no accident. It looked like arson, it looked like murder, and they had their suspect at the scene – Leonie Barnes, unharmed except for minor smoke inhalation and a chill from leaving the apartment wearing only her underwear.

On May 13, after nearly 16 months in jail and a seven-day trial, Barnes was found not guilty on all counts.

The jury concluded that Barnes may not have purposefully doused Morton with nail-polish remover and set him aflame in a fit of rage, as the state asserted. Prosecutor Cheryl Jacobs, in an e-mailed response to written questions about the case, says she still believes Barnes “meant to set Don Morton on fire, not her apartment.”

“The jurors,” retorts public defender Jeff Gilleran, who represented Barnes, “were intelligent and hardworking, and they obviously believe justice was served. . . .

“It was a tragedy what happened to Donald Morton,” Gilleran continues. “But in my opinion, the fire and police investigators in this case assumed this was an arson before they even entered the building, and then proceeded to ignore overwhelming evidence that the fire was accidental and never should have been classified” as purposefully set.

Videotapes of the trial demonstrate how Gilleran undermined the state’s case: by faulting an investigator’s methods in deeming the fire an arson, by revealing the fire and police departments’ uncoordinated handling of the follow-up probe, and by establishing a plausible accident scenario to create reasonable doubts in jurors’ minds. In the process, the defense raised questions about the quality of fatal-fire investigations in the city – revisiting issues that have nettled the department before.

Though never mentioned at trial, the ghost of the 1995 Clipper Mill fire – a much larger blaze in which a firefighter died – haunted the Barnes case. Communication breakdowns between fire investigators and police – documented in the Oct. 2, 1996, City Paper cover story “Firestorm” – plagued the Clipper Mill probe, in which no one was charged despite apparently strong evidence of arson. In the Barnes case, the defense showed similar departmental dysfunction, and argued that it led to unfounded charges of arson and murder.

“I’m amazed this thing ever went to trial,” says Bernard Schwartz, a private fire investigator who served as the defense’s chief expert witness, in an interview a few days after Barnes’ acquittal. Schwartz, whom the state’s attorney’s office has used as an expert witness in the past, says the case indicates that attempts to improve Baltimore City fire investigations in the wake of Clipper Mill haven’t taken root.

The main culprit of the investigative bungling in the Barnes case, the defense team argued at trial, was Fire Investigation Bureau Capt. Donald Wilson.

The bureau’s investigators have the sole authority in Baltimore City to deem fires incendiary, and they do so by determining the origin and cause of the blaze. Testimony showed that Wilson made the arson call within 20 to 40 minutes after arriving at the scene. His one-page report of the fire showed how he ruled out nonhuman causes – no electrical outlets or appliances or heat-producing devices near the point of origin. Then, he writes, “it appears that an accelerant … was poured on the victim and the mattress and an open flame was used for the ignition source. After the victim was on fire, he ran into the kitchen, causing the fire to spread.”

Gilleran’s alternative explanation for the fire was simple and, to jurors, more convincing: Barnes and Morton are sitting at the foot of her bed, watching the television. “They were drinking,” the attorney told the jury. “They were smoking, she was doing her nails, the bottle spilled, he had a lit match or a cigarette, and he caught on fire.”

Wilson, who did not receive departmental clearance to be interviewed for this article, worked for about 35 years as a firefighter. At trial, he explained that he became a fire investigator a year before the fire at Barnes’ apartment because he had been injured on the job and took a reassignment to the Fire Investigation Bureau, where he spent the first six months in field training. The Barnes case was his first fatal-fire investigation.

Testimony showed Wilson failed to collect key information before making the arson call. He didn’t interview the two witnesses, Barnes and her 19-year-old son, Jermaine. He didn’t notice key elements of the fire scene, in particular the presence of cigarette butts. He didn’t find out that Morton was smoking when the fire started, and had been drinking. And he didn’t learn that Leonie Barnes is uncoordinated and accident-prone due to a stroke that has affected the left side of her body, permanently contracting the muscles in her left hand – a condition that, in conjunction with alcohol, may have contributed to an accidental spill of nail-polish remover.

“Captain Wilson didn’t do his job,” Gilleran told the jury.

Wilson did, however, make the following, vaguely attributed comment in his field notes of the fire: “The statement was made that the son had said that his mother, using fingernail polish remover, had lit the victim on fire.”

At trial, Gilleran would use this statement to suggest that Wilson relied on “roadside gossip” to reach his arson conclusion.

Ultimately, a year after the fire, prosecutor Jacobs disclosed to the defense that Wilson, in a meeting with the prosecution team, had “momentarily expressed concern that the setting of the fire could have been accidental,” according to court documents.

Wilson was not alone in allowing for the possibility of an accidental cause – five of the state’s expert witnesses, under cross-examination, expressed the same opinion. And there was testimony that no one involved in the probe – neither Wilson, nor police arson and homicide investigators – checked the results of tests for the presence of accelerants on materials gathered at the fire scene. They were negative.

“It seemed to me that half of the state’s witnesses were learning new information for the first time when they were on the stand,” Gilleran opined to the jury. “Nobody followed up. Nobody cared. [The Fire Investigation Bureau] handed it off to police arson, who handed it off to homicide. It was nobody’s job.”

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