Kristine Bunch was convicted by a jury in 1996 of felony murder for the death of her young son, Anthony (“Tony”), in a fire at their mobile home and sentenced to sixty years. [Footnote omitted.] In
2006, Bunch began pursuing post-conviction relief, which was ultimately denied by the postconviction court in 2010. . . . .
. . . . .
. . . As McAllister testified, fire victim toxicology analysis first appeared in the leading fire investigation guide in 2001, five years after Bunch’s trial. Bunch contends the post-conviction court’s finding that McAllister’s testimony was just an interpretation of evidence that existed at the time of trial “misses the point” because although the toxicology results existed at that time, this particular interpretation and application of the results did not. . . . Bunch does not dispute that the factual evidence existed at the time of her trial; rather, she claims that the current scientific analysis of the factual evidence was not then recognized. The amicus note that three state legislatures have recently passed resolutions supporting judicial review of cases in which faulty science is alleged to have contributed to an arson conviction, implicitly acknowledging the “transformative advancements” in the science of fire investigation since Bunch’s trial. Brief of the Amicus Curiae at 12 (citing 2010 resolutions from Oklahoma, Nebraska, and Arizona). [Footnote omitted.]
Bunch analogizes this evidence to DNA analysis, which has been considered newly discovered evidence even though the DNA evidence itself existed at the time of trial. . . . .
We do not believe fire victim toxicology analysis can be precisely equated with DNA analysis, because DNA analysis can now definitively prove whether or not a DNA sample is from a given person, whereas fire victim toxicology analysis only tends to prove one fire origin scenario is more likely than another. However, we do agree with Bunch that, just as the evolving science of DNA analysis became accepted as the scientifically reliable method for accurately interpreting even previously-existing DNA evidence, fire victim toxicology analysis has become recognized as a scientifically reliable method to better interpret existing evidence, and that it has done so since the time of Bunch’s trial. The post-conviction court’s finding that Bunch’s post-conviction evidence is just “different packaging” for the same conclusion does not give appropriate due to the science which has emerged since Bunch’s trial to support that conclusion. Thus, we agree with Bunch that the fire victim toxicology analysis offered by McAllister has been discovered since her trial.
. . . .
. . . [T]he post-conviction court did not find McAllister’s testimony was not worthy of credit because it doubted her credibility or veracity based upon a firsthand evaluation of her demeanor; the post-conviction court found her testimony not worthy of credit because it was in conflict with trial evidence, without considering that new science –rather than new or different facts – formed the basis for her opinion. In other words, the post-conviction court did not find McAllister unworthy of credit on the basis of her demeanor; it found her expert opinion unworthy of credit on the basis of its foundation. Under these circumstances, we do not think it necessary or appropriate to impute a personal credibility determination to which we must defer to the post-conviction court. To do so would virtually eviscerate appellate review of post-conviction denials because we would have to speculate in every instance that the post-conviction court could have concluded the witness was not credible based on his or her demeanor.
Thus, although we would defer to the post-conviction court’s assessment of fact witnesses – for instance, a trial witness now recanting trial testimony or a new witness offering never-before-heard exculpatory testimony – we will not defer in this case to the post-conviction court’s assessment of an expert’s scientific evidence. We have the ability to assess McAllister’s expert testimony ourselves because her credentials and the basis for her opinion are part of the record. The post-conviction court found McAllister’s testimony was “not reliable” because she did not establish the scientific principles for her conclusion and because McAllister’s conclusions contradicted undisputed evidence and eyewitness
testimony from the trial. In making such a determination, the post-conviction court did not rely on her demeanor, but rather on the stated bases for her opinion and review of the trial record. We have the same information before us, and therefore are able to independently assess whether McAllister’s testimony is worthy of credit without invading the province of the post-conviction court.
. . . .
. . . McAllister’s fire victim toxicology analysis evidence, although not definitively able to disprove that Bunch committed a crime, at least creates a reasonable doubt that she committed the crime with which she was charged: knowingly using an accelerant to start a fire in the living room of her mobile home. . . . In reaching that conclusion, we acknowledge the inconsistencies in Bunch’s statements, but note also that she was asked to give two statements on the day of the fire, including one while she was still at the hospital, and that only excerpts of those statements were introduced into evidence. The State’s evidence was largely circumstantial, none of Bunch’s statements are actually inculpatory, and the toxicology evidence supports her defense of innocence. We conclude it is probable this evidence would produce a different result if offered on retrial.
. . . .
. . . Bunch has met her burden of proving the fire victim toxicology analysis evidence meets all nine requirements of newly-discovered evidence. We therefore hold the post-conviction court clearly erred in denying her petition for post-conviction relief on this claim.
NAJAM, J., concurs.
CRONE, J., dissents with separate opinion:
I have no quarrel with the majority’s determination that “the fire victim toxicology analysis offered by [Jamie] McAllister has been discovered since [Bunch’s] trial” and that, “[e]ven with due diligence, there would have been no way for Bunch to have discovered this analysis prior to her trial.” . . . That said, I respectfully disagree with the majority’s determination that the fire victim toxicology evidence is material and relevant and that it will probably produce a different result at trial, all of which hinges on its determination that the evidence is worthy of credit.
. . . .
. . . To the extent the majority contends that the post-conviction court failed to consider that “new science” formed the basis for McAllister’s opinion, I disagree. Although the post-conviction court was indeed skeptical that the principles underlying McAllister’s opinions were “generally accepted in the relevant scientific community,” perhaps because of her vague reference to “numerous studies,” its primary concern was that those opinions were based on factual premises that conflicted with the evidence presented at trial. I agree with the majority that we are in as good a position as the post-conviction court
to assess the validity of the foundation for McAllister’s opinions because we have the same information before us. That said, I do not believe that we are in as good a position as the post-conviction court – especially in this case, where the same judge presided at trial – to make the substantive determination of whether a witness’s opinions are sufficiently credible to merit a new trial. The two analyses are not the same.