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N.H. prosecutors can use arson experts’ testimony in Keene fatal fire case

The state’s most prominent cold case is back on track after the New Hampshire Supreme Court ruled yesterday that prosecutors may use the testimony of arson experts in their quest to convict a man of killing four members of a Keene family in a 1989 fire.

The Supreme Court reversed a 2011 trial court ruling that barred testimony by three arson experts because their findings are based in part on statements by a witness who has since died.

The court also reversed Cheshire County Superior Court Judge Marguerite Wageling’s suppression of a recorded 2002 phone conversation between David McLeod and an informant who told the police McLeod admitted to him in 1989 that he set the fire. Wageling barred use of the recording because investigators were three days late filing post-intercept paperwork. The Supreme Court in its unanimous ruling said that did not undermine the lawfulness of the interception.

The Supreme Court ruling restores key evidence that would have substantially weakened the state’s case had the trial court ruling been upheld.

McLeod, now 56, was living in California in 2010 when he was charged with four counts of second-degree murder in connection with the Jan. 14, 1989, fire that killed Carl and Lori Hina, their 4-month-old daughter, Lillian, and Carl Hina’s 12-year-old daughter, Sara Hina. Fifteen residents of the apartment building survived.

Authorities said McLeod threatened to torch the building where his ex-girlfriend lived and afterward bragged about having set the fire. Investigators say the fire started in the apartment of Sandra Walker, who lived one floor below the Hina family.

Information from Walker, who has since died, provided investigators with important clues about the speed and nature of the fire. But prosecutors cannot use her statements in presenting their case because that would violate McLeod’s constitutional right to confront and cross-examine her. McLeod’s lawyers are free to make reference to Walker’s statements on cross-examination.

Retired state fire investigator Thomas Norton testified last year that he initially thought a dropped cigarette may have started the blaze but discounted that after talking to Walker. Walker first told the police she thought she must have fallen asleep on the couch while smoking.

The Supreme Court noted that Norton didn’t rely solely on Walker’s statements but conducted tests, including a test burn of material from Walker’s couch. Norton ruled fire was the result of an “incendiary act” and ruled out a burning cigarette as the cause.

His findings were reviewed more than two decades later by two arson experts from the Bureau of Alcohol, Tobacco, Firearms and Explosives. Both substantiated Norton’s conclusions.

Wageling ruled that without Walker’s statements, the experts lack sufficient information to support their conclusions. The justices found Wageling failed to address “the extent to which the experts’ opinions resulted from the exercise of independent judgment based on training and experience.”

“We conclude that the state’s experts have each applied their independent judgment to Walker’s statements and that they are not acting as mere ‘transmitters’ of testimonial hearsay,” Justice Carol Ann Conboy wrote. “Walker’s statements have little significance as to the cause and origin of the fire in the absence of experts’ knowledge of fire science.”

McLeod’s lawyer, Caroline Smith, didn’t immediately comment on the ruling.

Senior Assistant Attorney General Janice Rundles said yesterday that the case against McLeod couldn’t have gone to trial if Wageling’s rulings had been upheld.

“We felt that we could not go forward on an arson murder case without an arson expert,” Rundles said. “We’re very pleased with the decision.”

The Supreme Court sent the case back to the trial court for a hearing on defense challenges to the experts’ scientific methods, which Wageling didn’t address in her ruling.

Rundles said no hearing date has been scheduled.

McLeod has been held without bond since his arrest nearly three years ago.

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