Thursday, April 2, 2015

Billy Essex

William (Billy) Essex was four years old at the time of his death, just weeks shy of his fifth birthday. Today he would be just shy of nineteen.

At autopsy, the child was found to have severe blunt force trauma to the head that the medical examiner said was not indicative of having been caused by falling debris. When asked during an interview on the date of the incident how she believed the fire started, his mother told police, “…that stupid, fucking lighter” was the cause of the fire.

HERSEY TOWNSHIP—A four-year-old who died in a Hersey Township house fire has been identified as William (Billy) Essex, according to officials. Also in the home when the fire started Monday were Rebecca Manier, age unknown; James Forgar, 32; and three children, Dylan, Ron and Ashley Essex, according to the Osceola County Sheriff Department. All were treated at the scene and did not require hospitalization. 

Firefighters from Evart City Fire Department and the Hersey and Lincoln township fire departments battled the 6:30 a.m. blaze in the Roaring Brook subdivision. Fire investigators at the scene initially indicated it may have been caused by a child playing with a lighter. Smoke detectors were either unavailable or inoperable, fire officials said.

The cause of the blaze remains under investigation. Investigators include the state fire marshal, the Osceola County Sheriff’s Department and Michigan State Police.

Everyone in the home that night, except Billy, escaped the fire. There were two adults present, with the rest of the occupants being minors. According to the Michigan State Police report following the autopsy on April 3, 2001 by Dr. Stephen Cohle in Grand Rapids, it was determined that the victim received a severe blunt force trauma injury to the left side of his skull prior to the fire. The next day, a search warrant was obtained and evidence was collected, including a gas can sitting just inside the door of a shed on the property.  

During testimony on Thursday, Sgt. Mike Jenkinson, a Michigan State police officer currently assigned the fire marshal division in West Branch, recounted his findings at the scene. Jenkinson said he processed the bedroom containing the victim first. After spending the entire day in that room, investigators concluded the fire and death were accidental. 

Two days later, Jenkinson received the autopsy report showing the victim sustained blunt force trauma to the head. Investigators returned to the scene. This time, he discovered traces of gasoline located underneath a melted inflatable mattress in a separate room and a cigarette butt in the bedroom. Although Jenkinson doesn't believe the cigarette butt would be capable of starting such a fire, he said other accelerants such as paper and clothing could. Based on these findings, Jenkinson testified the house had two fire sources. He stated also that he believes Forgar set the fire in the living room and Taylor set the fire in the bedroom.

Dr. Stephen Cole, a forensic scientist, testified about autopsy findings conducted on Essex's body. The prosecution presented evidence showing blunt force trauma to the victim's head. Despite the evidence of head trauma, the actual cause of death was carbon monoxide poisoning. His blood showed 87 percent saturation of the lethal gas. During the testimony, Cole stated that 50 percent saturation is enough to be lethal. Cole stated also that falling objects from above would not be substantial enough to cause Essex's head injury.

The prosecution alleges that Essex was struck by a blunt object, such as a baseball bat, and left unconscious as the house burned. He later succumbed to the poisonous gases. 

The defense argued the accidental death was caused when falling debris from the burning house struck Essex in the head rendering him unconscious. 


From the Cadillac News, October 10, 2003:

REED CITY - Felony murder and arson charges against Karen Jeanette Taylor and James Lorne Forgar were dismissed Thursday. Judge Susan Grant determined the prosecution lacked sufficient evidence. Taylor and Forgar were in Osceola County District Court to complete a preliminary hearing to determine if their case would be bound over to circuit court.

The two were charged in connection with an April 2, 2001 incident in Hersey where a home Forgar rented burned down, killing Taylor's son. Four-year-old William C. Essex III was found dead in the home's middle bedroom after the fire. Charges were brought when investigators found trace amounts of gasoline in the living room. Further investigation found inconsistencies in the testimony of Taylor and Forgar. Murder charges came about when medical examinations found Essex had suffered a blunt force trauma to the left side of his head. In Grant's ruling, she stated there was little evidence to connect Taylor and Forgar to the arson. In addition, she stated the prosecution did not have sufficient evidence to determine either defendant played a role in Essex's injury.

The defense argued that the head injury was caused by debris that fell as the roof collapsed. Grant also stated brain injuries may have resulted from the intensity of the fire. Prosecuting Attorney Sandra Marvin said it is too early for the county to consider the case closed.

While disappointed, Marvin said it is very difficult to prosecute arson cases because evidence is generally destroyed. She did say, however, that the prosecution presented enough evidence to continue the case. Robert June, legal counsel for Forgar, said he did not think the charges or the investigation were enough to prosecute his client. He said investigators did not seek out the proper evidence which would have determined the fire was caused by other children in the house.

"Obviously we're very pleased," said Ryan Glanville, legal counsel for Taylor. "It was a very difficult case and it's not easy for a judge to (dismiss) in this case. “At the end of the day it just wasn't there." Glanville said his client should never have been charged and she is looking forward to getting back with her children.

The Michigan State Police still has William (Billy) Essex III on their list of open homicides, so I reached out to Ms. Taylor's lawyer for clarification. He sent this:

"I represented Ms. Karen Taylor in 2003 in regards to a charge of open murder brought against her by the Osceola County Prosecutor, Sandra Marvin. Karen’s son Billy died in a tragic house fire in 2001. She saved her other children from the fire, but was not able to get to Billy on time. The Prosecutor’s theory was that Karen struck Billy in the head and then intentionally set the fire with matches before the fire started. The fire inspector observed several large pieces of rafters from the ceiling lying across and around Billy’s body when they found him…"

"Judge Susan Grant, a well-respected District Court Judge for the 77th District of Michigan, Osceola County, ruled that there was not enough evidence to support the Prosecutor’s case and dismissed the charge against Karen. The Prosecutor appealed, but Judge Root, the Circuit Court Judge for Osceola County, upheld the dismissal. Ms. Marvin lost her subsequent re-election campaign for Prosecutor."

"If you want to look into this matter further to verify what I am telling you, please do so at the Osceola County District and Circuit Court. We hope that you consider the grief that Karen and her children went through at the time, and think again about reporting this as an unsolved murder."

"I would encourage you to look at the court files, specifically the preliminary exam transcript which I no longer have, and the written closing arguments and appeal briefs filed by the attorneys including myself, Bob June, and Ms. Marvin. The testimony given at the preliminary exam and Judge Grant's opinion will give a fair assessment of the case. I don't think just talking to the State police and Dr. Cohle will be enough.  Dr. Cohle initially ruled the death an accident, and Sgt. Jenkinson ruled the fire accidental after the first day.  They did not give an adequate explanation at the preliminary exam as to why the death should be ruled anything other than an accident. People in law enforcement don't like to admit they rushed to judgment, so I am sure anybody you talk to from law enforcement will continue to hold firm to their opinions." 

Michigan State Police has this listed as an unsolved homicide. I do not have the power to remove his name from the list they gave me, nor am I comfortable not taking into account the fire marshal’s testimony and the opinions of the medical examiner, some of which feels a bit misrepresented in the above statement, based on court testimony. I would also argue that a two year delay between the incident and the hearing doesn't exactly feel like a rush to anywhere, never mind judgment.

The case was dismissed by Judge Grant due to a lack of evidence. Former Osceola County Prosecutor Sandra Marvin insists she never filed criminal charges she did not 100% believe in, and this case is no exception. In her words, "Billy deserved better."

Both Mr. Glanville (Ms. Taylor’s attorney) and Ms. Marvin suggested I obtain court documents, which I did, though the full transcript of the 3 day preliminary hearing was unavailable. I was told by the Osceola County District Court that it would cost over $1,000.00 (yes, that's thousand) to have a copy re-transcribed from audio, as they do not maintain hardcopy transcripts that old. This hearing occurred in 2003, mind you. (We'll talk about Osceola County's need for better record keeping and, perhaps, to bring themselves into the digital age in another blog...)

I was able to obtain fifty pages from the Circuit Court which contained the statement of facts, each put forth by the defense attorney and prosecutor regarding their view of the case. Going through it as a layperson, the first thing you notice with glaring regularity is that they may be playing fast and loose with the word “fact” in this regard. It’s clear each side cherry-picks “facts” based on testimony of witnesses that suits the needs of their very different arguments. (As with anything, context is important.)

When I sat down with former Osceola County Prosecutor James Talaske to discuss his recollection of the Janette Roberson case, I mentioned in passing that I was also looking at this case and told him as much with regard to the cherry-picking. He chuckled. “Well, yes. Each side is going to present what they feel best represents their case.”

So, did little Billy Essex die in an accidental fire, or was this about something more nefarious?

That’s where it becomes muddy. This case didn't go to trial where jurors get to hear all of the facts and make a determination. This only made it to preliminary hearing where two lawyers interview a handful of witnesses before a judge. If the right witnesses aren’t presented, if the witnesses fail to adequately explain themselves, if the judge doesn't understand the testimony, if not enough evidence is presented… there are a great many reasons why a preliminary examination will end in a dismissal. 

Here are two facts to consider:

1. Michigan State Police considers this a homicide, not an accidental fire.

2. Karen Taylor adamantly maintains this was an accidental fire and she did nothing to cause injury to her child.

From the Prosecutor's statement of fact:

"Captain Bush observed that the fire damage in the middle bedroom where Billy was found was not as bad as the fire damage in the living room. The roof in the bedroom was not down directly over the body of Billy Essex III and other than ashes, Captain Bush testified, "there wasn't nothing that had appeared that had fallen and covered the body." (Tr. 10/9/2003, pg. 9)

From the Defense's statement of fact:

"After the fire, but before any debris was removed, Deputy Hard looked in the middle window and saw Billy. The roof over the middle bedroom had caved in." (pg. 30)

Notice how the Prosecutor says the roof was not down "directly over the body" - meaning some roof was down, but not that directly over him. But the Defense attorney says "the roof over the middle bedroom had caved in" but not how much of the roof. Semantics. Context. Somewhere betwixt the two lawyers' statements of fact may lie the actual facts.

From the Prosecutor's statement of fact:

"No debris had been removed from the body before the Fire Marshal arrived and no trusses had fallen on the body, as that part of the roof was still intact." (Tr. 10/09/2003, pg. 10) "Captain Bush did observe a board lying next to Billy's body (Tr. 10/09/2003, pgs. 10-11) approximately 4-5 inches away from Billy's head."

From the Defense's statement of fact:

"Samples from the insulation in the foyer and the southwest corner of the living room underneath a mostly consumed air mattress tested positive for gasoline. (pg. 129) No evidence of gas was found in the middle bedroom."

Also this from the Prosecutor's statement of fact regarding Dr. Cohle's testimony: (Dr. Cohle did the autopsy on Billy Essex)

"Dr. Cohle further testified that he couldn't determine exactly when the injury occurred but it was his opinion that it occurred minutes or hours before the fire. (Tr. 06/05/2003, pg. 53) It was Dr. Cohle's opinion that the injury did not occur after the start of the fire. (Tr. 06/05/2003, pg. 54)

"Dr. Cohle determined the manner of death to be indeterminable. He stated it 'clearly wasn't natural or suicide... I have significant concerns that it's not accidental.' (Tr. 06/05/2003, pgs. 21-22) "[W]hen I examined that brain, that - that changed things from being what appeared to be an obvious accident to possibly a homicide. My best opinion would be homicide." (Tr. 06/05/2003 pg. 22)

Now, Common Sense taps me on the shoulder and asks why they didn't just send it to court and let a jury sort it out, but the problem is that it appears the Judge felt the Prosecutor did not meet the burden in District Court to prove arson even occurred. 

Prosecutor Marvin believed it was Dr. Cohle's professional conclusion that the blow to Billy's head occurred prior to his death. It was their further position that by the time the rafters fell from the ceiling, Billy would have been dead from the toxins created by the fire. This is important because, according to the Prosecutor's statement of fact:

"Dr. Cohle testified that heavy wooden beams striking Billy after he had succumbed to the carbon monoxide would not have caused the injury. (Tr. 06/05/2003, pg. 38.) Dr. Cohle testified, 'I can say he's certainly very much alive when he receives the head injury.'"

More from the Prosecutor's statement of fact:

"Sgt. Jenkinson and Sgt. Proudfoot worked on the scene of the fire until dark on April 2, 2001, and returned on April 4, 2001, to complete their investigation. During the first day, Sgt. Jenkinson presumed the fire was accidental but had changed that opinion before the second day of investigation due to the autopsy report." (Tr. 06/05/2003, Pgs. 124-125.)

"Sgt. Jenkinson determined that an origin of the fire was in Billy's room as a result of a cigarette being placed in the bristles of a broom, (Exh. 34) which was underneath a laundry basket. (Exh. 35) (Tr. 06/05/ 2003, pgs. 111-112) Sgt. Jenkinson made this determination based on the burn patterns on the broom, which indicated that burning occurred underneath the plastic laundry basket."

"Sgt. Jenkinson testified that it typically takes about 1/2 hour for a fire that is started on the floor with no accelerants to bring the roof down." (Tr. 06/05/2003, pgs. 242-243)

"Sgt. Jenkinson also collected samples from the living room, and the utility room for lab analysis on April 4, 2001. (Tr. 06/05/2003, pg. 126) The sample taken from the southwest corner of the living room near the air mattress on the floor, Number 10, and the sample of insulation taken from the entrance way in the living room, Number 12, both tested positive for gasoline. (Tr. 06/05/2003, Exh. 33) Sgt. Jenkinson testified that the air mattress located on the floor in front of the entertainment center was melted to the floor. When that item was lifted from the floor, there was an odor of gasoline"it was such a strong overwhelming odor when we lifted the material off the floor it about knocked you off your feet, it  -- it was strong." (Tr. 06/05/2003, pgs. 130-131)

"Sgt. Jenkinson further testified that until the melted plastic was lifted from the floor there was no odor of gasoline. A dog had been taken through the scene and did not locate that gasoline. (Tr. 06/05/2003, pg. 179.) It is Sgt. Jenkinson's opinion that the gasoline was trapped under the plastic, which protected it from being consumed by the fire or diluted by the fire suppression activities and also from being detected by the dog. Sgt. Jenkinson was unable to quantify the amount of gasoline." (Tr. 06/05/2003, pg. 247.)

"A lighter was located during the second day of scene investigation by Sgt. Jenkinson in the debris taken from the middle bedroom. The lighter is gold colored with a rose imprint. (Exh. 26) The lighter had no flint in it and was thus, inoperable. (Tr. 06/05/2003, pg 132.)

"Sgt. Jenkinson also testified that it is inconsistent for the flames to reach the height seen by Dep. Hard, within the time frame unless the fire is accelerated. (Tr. 06/05/2003, pg. 138.)

"Sgt. Hard was the first officer to respond to the fire scene. At approximately 6:49 AM Sgt. Hard observed the flames from the fire over the trees as he was traveling on US-10. (Tr. 04/07/2003, Pgs. 14-15) "The trees were probably about 35 to 40 feet tall, so it had 40, 45 foot tall flames." (Tr. 04/07/2003, pgs. 15-16)

"Based on his investigation, Sgt. Jenkinson believes this fire was intentionally started in the bedroom by Defendant Taylor (Tr. 06/05/2003, pg. 241-242.) and that Defendant Forgar added the accelerant to increase the fire spread."

"Det/Sgt. Pratt interviewed Defendant Taylor on April 4, 2001, April 5, 2001, and April 12, 2001, and in January 2002. In the first two interviews Defendant Taylor indicated there was no reason for Billy to have any injuries and on April 12, she indicated that Billy had struck his head on the left side in the temple area on the carpeted cement floor while wrestling with her the evening before the fire. She also indicated that he cried for a moment and then he went about his normal activities. Det/Sgt. Pratt never disclosed to Defendant Taylor the location of the injury discovered on Billy's head." (Tr. 10/09/2003, pgs. 41-42)

"Defendant Taylor also told Det/Sgt. Pratt that she had not smoked after Defendant Forgar arrived home." (Tr. 10/09/2003, pg. 56.)

"In the interview in January 2002, Defendant Taylor sold Det/Sgt. Pratt that she got up in the middle of the night, smoked a cigarette and doesn't remember what happened to it. She further speculated that perhaps she ran into the broom that was located in her bedroom that would have been standing on the wooden handle end with the bristles in the air knocking the cigarette from her mouth into the broom bristles causing the fire which then fell to the floor and she may have kicked the laundry basket over the broom." (Tr. 10/09/2003, pg. 57.)

At the end of her presentation of facts, the Prosecutor discusses the bindover standard.

"The purpose of the preliminary examination is to weed out groundless and unsupported charges. In so doing, the examining magistrate may not determine the case as a fact finder at trial, and may not fail to bind over as charged simply because the evidence conflicts or a possible reasonable doubt exists, or in other words, when there are triable issues of fact." 

Let me break that down a bit more for you. She's saying, "Yo, Judge. It's not your job to play judge AND jury." The function of the District Court is to determine if there's probable cause to believe a crime was committed and probable cause to charge the defendant with that crime.

Marvin's case law brought up a valid point: "The crime of arson is a crime typically proven by circumstantial evidence. In People v Porter, 269 Mich 284, 292; 257 NW 705 (1934) the Michigan Supreme Court stated: "The crime of arson is so peculiarly one of secrecy that often the only evidence of the unlawful character of the fire is found in the acts and admissions of a person having opportunity and motive.

"In the present case, motive is clearly established by the evidence presented. The severe head injury suffered by Billy Essex III sets forth an enormous motive to burn the residence with Billy inside. The act of burning the residence did, in fact, destroy evidence that may have assisted in determining the instrumentality of the head injury. the reasonable inference from the evidence is that Billy suffered from the head injury prior to the fire. Dr. Cohle testified that the injury was incapacitating and was suffered before Billy had a significant accumulation of poisonous gasses in his system, which would likely occur after the first minute of the fire. Therefore, it is likely that the injury occurred prior to the fire since it did not occur after the first minute of the fire."

"Dr Cohle testified that it would only take minutes after the start of the fire for a lethal level of poisonous gasses to cause death. That would certainly occur before portions of the trusses began falling down - which would occur approximately 1/2 hour after the start of the fire according to Sgt. Jenkinson. Any falling material from the roof could not, therefore, have caused the injury to Billy."

Here's where the Prosecutor took umbrage with the decision of the District Court Judge: 

 "In its opinion, the District Court stated:

JUDGE: In fact, Doctor Cohle's testimony, as I recall it, was that he could not say when the injury occurred but it almost had to occurred contemporaneous with the fire and that, yes, in fact it could have been called - caused by falling debris in the fire, a truss falling on a child's head, whether, it's half of it or all of it, certainly could of caused the type of injury. I will also note from Doctor Cohle's testimony, which I did review in detail, he also could not tell how much of the injury to the left side of the child's head was from the blow and how much was the br - the brain coming into contact with the fire. try to imply somehow that this fire - fire was set to cover up his death is, obviously, completely refuted by the evidence. To say that it was set to cover up his injury, once again, is refuted by Dr. Cohle's testimony who said the injury had to be fairly contemporaneous to the fire because otherwise the child - if - if the severity of the injury to the head would have been, as he viewed it, the child wouldn't of been conscious long enough to breathe as deeply as he needed to, again, he could not sort out how much was caused by the fire; ... (Tr. 10/09/2003, pgs. 128-130)

The Courts opinion completely misrepresents the testimony of Dr. Cohle as follows:

1. It was Dr. Cohle's opinion that the injury occured prior to the fire - not contemporaneous with it.

2. It was Dr. Cohle's opinion that a heavy beam would need to free fall 12-14 feet, unencumbered, and strike Billy with its full weight to cause the type of serious injury he observed. This opinion is not consistent with falling debris in the fire and Captain Bush's testimony that trusses come down slowly during a fire.

3. Dr. Cohle testified concerning additional damage caused to Billy's head caused by the fire, but that damage had nothing to do with the serious brain bruising which was the incapacitating injury suffered by Billy while alive which caused Dr. Cohle to believe the death was not accidental.

4. The injury to Billy would have rendered him unconscious immediately. Dr. Cohle's testimony concerning depth of breathing referred to the accumulation of poisonous gasses from the fire. The injury indicated that Billy was breathing normally at the time he received it and after about a minute of breathing the poisonous gasses caused by the fire Billy would not have been breathing normally - or deep enough for the injury to bruise as it did.

The District court further stated that "Sgt. Hard testified that the window was broken out and he was able to see inside or reach inside the window, so apparently, he was told where Billy was. (Tr. 10/09/2003, pg 123, L 16-18.) This statement of facts is inconsistent with the testimony of Sgt. Hard who stated he was not told where Billy was and that he was unable to see inside or reach inside the window due to smoke. He also testified that Billy's body was located within arms reach of the window. A reasonable inference is that Sgt. Hard would have made additional efforts to reach inside the window to grab Billy, instead of leaving the window and going to the door, if he would have known where Billy was located."

In reference to Sgt. Jenkinson's testimony the Court stated:

JUDGE: He admitted he had not gathered any evidence for 17 days after the fire, he got to the scene, he concluded it was an accident, and he treated it as an accidental fire, he did nothing to collect any evidence or preserve any part of the scene even though when he returned 17 days later he admitted he found the cigarette that he threw away, 17 days later, apparently, he found these other items but, to me, this does not sound like the kind of investigation which a prosecutor or the Michigan State Police want to rely on... (Tr. 10/09/2003, pg. 125, L 13-23)

"Sgt. Jenkinson testified that on the first day of his investigation, April 2, 2001, he presumed the fire to be accidental which is what the law requires. He photographed and videotaped the scene and began an investigation into the cause and origin of the fire. On his second day of investigation, April 4, 2001, he admits that he had a different opinion of the cause and origin of the fire due to the autopsy report. During the second day, Sgt. Jenkinson collected many samples, which were submitted to the lab for analysis. The only evidence not collected by April 4, 2001, was the clothes basket and broom which he secured on April 17, 2001,  - 15 days after the fire. He had already photographed those items."

"The Court further refers to Sgt. Jenkinson's testimony as follows:

JUDGE: Now, here's what I recall of Detective - Sergeant Jenkinson's testimony, in all of his investigation when he finally did it, he found one spot of gasoline on the mattress, that was it... (Tr. 10/09/2003, p 126, L 8-11.)

"Sgt. Jenkinson testified the odor of gasoline was so overwhelming and was protected from consumption from the fire by the melted air mattress. Although he was unable to quantify the amount of gasoline, it wasn't just a "spot." This was located on the second day of his investigation and was located under the air mattress where Ashley Taylor and her friend had been sleeping. It is a reasonable inference that those girls would not have chosen to sleep in an area with such a strong odor of gasoline. The gasoline must have been poured there after the girls left the house."

"The Court did not address the testimony of Det/Sgt. Pratt in its opinion. The statements taken by him from the Defendants were conflicting. Of special interest was Defendant Taylor's attempted explanation of an injury to Billy's left temple area when Det/Sgt. Pratt had not told her the area of the actual injury and her statement of getting everyone out that was alive. Also, Defendant Taylor's speculation of how the cigarette got into the broom and started the fire. No explanation was provided for the gasoline by either Defendant. Nor, was any explanation of why Billy would have been in bed sleeping with slippers on."

"Both Defendants claim a log was thrown through the window of the middle bedroom during a rescue attempt, which simply didn't happen. Such a log was never located. Defense counsel inquired to Dr. Cohle whether a log could have caused the injury to Billy to which Dr. Cohle indicated that it would not if it was tossed through the window. A reasonable inference is that the Defendants fabricated the story about the log for the purpose of providing an explanation for the injury on Billy." 

"This case rests on the court's determination of the arson charge..."

The Prosecutor concluded that she believed she had presented enough evidence on the elements of arson to have the case bound over to court to let a jury decide.

Next up, the DefenseRemember, this case never made it past the preliminary examination phase, and the fire occurred in 2001. That's fourteen years with no subsequent charges. The Defendant maintains this was a horrible moment in their lives, but she had absolutely nothing to do with the death of her son. In fact, in her very first interview on scene that day, she says one of her children said, I sorry I play with the flower lighter as they took shelter in Jim Forgar's car outside the house while the fire was still burning. This lighter was later found and, according to the Circuit Court documents, had no flint and was inoperable.

A great deal of the Defense statement of facts centers around what they clearly believe was a violation of standard procedure. They maintain the Fire Marshal did not preserve evidence on the first day because he believed at that time the fire was accidental, but that changed when he received the autopsy report results and learned of Billy's head wound.

They also take issue with the findings of Dr. Cohle, the forensic pathologist who performed the autopsy. From the Defense's statement of fact:

"Dr. Stephen Cole, a forensic pathologist, testified for the prosecution. Dr. Cohle testified that Billy died from smoke inhalation. (pg. 19) Dr. Cohle also found that Billy suffered a severe blunt force trauma to the left side of his head. (pg. 8) Billy received the injury before he died from the smoke inhalation. (pg. 20) The head injury was so severe that it would have been obvious to anyone who observed Billy after he sustained the injury. (pg. 77) For instance, Billy would have been unconscious, or showing signs of involuntary movement such as convulsing. In Dr. Cohle's opinion, Billy could not have been moving voluntarily after he received the head injury. He could not have been standing. (pg. 77) No one noticed anything unusual about the way Billy was acting the night or morning before the fire."

"Dr. Cohle is trained to determine the cause of head injuries. He uses clues such as scalp lacerations, trace evidence and skull fractures to make his conclusions. In this case, the heat fracture Billy suffered in the fire, also to the left side of his head, destroyed any evidence that Dr. Cohle could have used to draw any conclusions. (p. 47) No items were found at the scene with any evidence of being used to strike Billy." (pg. 61)

With regard to the mention of both injuries being on the left side of Billy's head, the Prosecutor argued:

"Dr. Cohle also testified concerning heat fractures to Billy's skull caused by the fire and exposed brain material depicted in Exhibit 32. Such injury is not related to the brain bruising caused by the severe blow to the head." (Tr. 06/05/2003, pg. 34-38.)

More of the Defense's argument:

"Dr. Cohle testified that the trusses found all around Billy's body could have fallen with sufficient force to cause his head injury. (p. 66) The head injury most likely happened no more than minutes to an hour before the fire, and could have happened several minutes into the fire. (pgs. 21, 39, 53, 56) The head injury could have occurred more than several minutes into the fire if there was proper ventilation." (pg. 57)

"Someone told Dr. Cohle that Billy was discovered on the bed in the back bedroom, laying as if he were sleeping at the time of the fire. (pg. 32 and 78) Dr. Cohle did not know that Billy was actually found half on and half off the bed in the middle bedroom. (p. 77-78) Dr. Cohle ruled the manner of death interminable (sic). (pg. 51)"

The Defense's argument of law hinged upon their belief that the elements of felony murder were not met, nor was the Prosecutor able to meet the bindover standard regarding the arson.

"Probable cause requires a quantum of evidence 'sufficient to cause a person of ordinary prudence and caution to consciously entertain a reasonable belief of the accused's guilt.'"

Something to note here is that these documents come from the APPEAL which was in Circuit Court. Essentially the Prosecutor believed the District Court Judge abused her discretion. The Circuit Court Judge, though, "cannot merely substitute his judgement for that of the District Court Judge," the Defense attorney argued. " appellate judge must form his judgment solely from the printed word." So the Judge hearing the appeal could only use the printed pages from the lawyers in front of him to make his judgement about the appeal, not the facts of the case, whatever those are/were. Only the arguments by each lawyer and the District Court's ruling.

The Defense Conclusions:

"In this case, Judge Grant found no evidence that Ms. Taylor started the fire that caused the death of her son. In fact, after Sgt. Jenkinson's direct examination, Judge Grant had the "strong impression" that Sgt. Jenkinson failed to provide any evidence that "anyone had done anything" until Ms. Marvin asked him on re-direct, and reminded him that he was supposed to say something about someone starting the fire. (October 9, 2003 Prelim p. 125) Ultimately, Judge Grant found no evidence that Ms. Taylor started the fire (p. 129). Judge Grant concluded that there were many inferences that the children started the fire accidentally. (pg. 129)"

"There is no proof Ms. Taylor started the fire in the middle bedroom."

"Sgt. Jenkinson testified there were two origins of the fire. The first origin occurred in the middle bedroom, and was started with ordinary combustibles such as paper, sheets, etc. The second origin occurred in the living room and was started with an accelerant."

"Sgt. Jenkinson does not think that Ms. Taylor started the fire in the living room, and Ms. Taylor is not charged with conspiring to help Mr. Forgar spread the fire to the living room. By all witnesses' accounts, including Mr. Forgar and the two girls who were sleeping in the living room, there was no fire in the living room at the time Ms. Taylor left with her two boys. Mr. Forgar is the only person who returned to the house after all the parties were out. This attorney does not believe that Mr. Forgar helped to spread the fire artificially with gas as Sgt. Jenkinson testified, but he brings this point up only for the purpose of narrowing the focus of Ms. Taylor's case. There is no evidence that Karen Taylor had anything to do with the fire in the living room."

"Actions speak louder than words. The most telling thing about this case is that after Sgt. Jenkinson spent the entire day at the fire scene interviewing witnesses and processing the entire scene, he "believed" the fire was accidental. After all, the boys told people they started the fire by playing with lighters, they suffered burns to their thumbs and forefingers, and the fire started on the children's bed. Sgt. Jenkinson's belief that the fire was accidental was so strong that he did not collect any evidence, and he decided not to return to the scene."

"Even when the autopsy findings made Sgt. Jenkinson suspicious, his return to the house focused on the living room and the shed, not the middle bedroom. Sgt. Jenkinson did not return to the middle bedroom to collect the broom and clothes basket until 17 days after the fire. Sgt. Jenkinson never collected the cigarette butt that he states was intentionally placed in the broom."

"The evidence in this case never changed, only Sgt. Jenkinson's opinion. Sgt. Jenkinson changed his opinion from an accidental fire to an intentional fire, made to look accidental. When asked to explain why, his only response was that Karen had opportunity. But he knew this on the first day. Sgt. Jenkinson tried to support his conclusion at the preliminary exam by asserting that the broom should not have burned the way it did if it was covered by the clothes basket. Therefore he claims the fire must have been set and made to look like an accident. But Sgt. Jenkinson reached the exact opposite conclusion from the same evidence before he heard the autopsy reports."

"While there is no hard evidence to suggest Ms. Taylor started the fire, the State asks this court to consider the same arguments that failed in District Court. First, the state relies on the fact that no log was found in the house to prove that Mr. Forgar and Ms. Taylor fabricated the rescue attempt. The facts show, however, that the middle bedroom window was broken in. Sgt. Jenkinson found glass inside the room, but not outside. Something broke it in. While the broom was ot consumed, whole portions of the ceiling trusses and cabinets were. Finally, since Sgt. Jenkinson never talked to any of the firemen inside the house, he does not know if they removed any logs from the middle bedroom, or moved them somewhere else."

"Second, the State relies on the fact that neither Mr. Forgar nor Ms.Taylor told Deputy Hard where Billy was located when he responded to the scene. Deputy Hard did not talk to Ms. Taylor until after the fire was extinguished. She was taking care of the children when Deputy Hard arrived. Mr.Forgar did run to tell Deputy Hard that he thought Billy was in the middle bedroom, but he was not sure. Ms. Taylor did tell Captain Bush that she thought Billy was in the middle bedroom. That is why he focused his hoses on that area."

The Head Injury is Unexplained:

"The real reason Sgt. Jenkinson changed his opinion from accidental fire to intentional was that the autopsy report performed by Dr. Cohle showed an unexplained injury to the left side of Billy's head. This fact alone is troubling because of Sgt. Jenkinson's investigation. This circular logic should not be used to shine any light of probable cause on Ms. Taylor."

"Dr. Cohle testified that the head injury was unexplained. An unexplained injury is just that. The state shoulders the burden of proof in this case and they have presented no evidence of what caused the head injury or who."

"Dr. Cohle's testimony established the following:

1. Billy suffered the head injury on his left side and it likely occurred from minutes to one hour before the fire up to the point he died from smoke inhalation. It could have occurred "several minutes" into the fire, and even longer with proper ventilation, like the broken out window in this case."

2. Dr. Cohle could not tell what caused the injury.

3. Dr. Cohle admitted the ceiling beams found all around Billy could have caused his head injury.

4. There was no evidence of any objects found at the scene of the fire that caused the head injury.

"The position that Billy was found is important. Detective Pratt told Dr. Cohle Billy was found at the fire scene as if he had been sleeping on the bed during the fire. But Deputy Hard actually found Billy half on, and half off the bed. Dr. Cohle admitted that he would only sleep in that position if he were drunk. Dr. Cohle testified that Billy's head injury was so severe that he would not have been able to move, or even stand. Since Deputy Hard found Billy laying half off the bed, he was conscious during the fire, and moving. Billy must have fallen partially on the bed when something struck him on the head. The only other explanation is that someone laid Billy in that awkward position after he suffered a head injury."

"The state has simply failed to present probable cause that Ms. Taylor started the fire that took Billy's life. The District Court based her decision on a careful review of the record. There is no basis for finding that she exercised a perversity of will, defiance of judgment, or passion and bias."

Both arguments are compelling, but I keep coming back to one thing.

The gasoline. The Fire Marshal said when they pulled up that air mattress, "it was such a strong overwhelming odor when we lifted that material off the floor it about knocked you off your feet, it -- it was strong." 

Both the Prosecution and Defense note that multiple areas in the living room tested positive for gasoline. I like facts; I like science. While I cannot tell you how and when Billy sustained his head injury, I can say there shouldn't have been gasoline found in the living room of that house. Not so much that the fire marshal describes it overwhelming. That was never addressed by the Defense. By law he doesn't have to. All he has to do is show that the State has not met their burden.

Still, it bothers me. That gas.

Here's an excerpt from an interview done by the Gladwin County Record & Beaverton Clarion in 2011 with Mike Jenkinson, the Fire Marshal in this case, and on many cases thereafter:

GCR: In your years as a fire marshal are there any fires that stick out in your mind?

MJ: The fire that sticks out the most in my mind was a fatal fire that involved a 4-year-old boy. There were some suspicious factors right early on and we ended up working that scene about 18 or 19 hours straight. Then, after we got the autopsy results that showed the boy had sustained a blow to the head prior the fire, we got a search warrant and spent another 18, 19, 20 hours the next day.

When it was all said and done we were able to prove the fire was arson and the boy was basically beat over the head before the fire and therefore it was a homicide. We were able to get warrants for the boy’s mom and his uncle and charged both of them with open murder and arson. We had one of the — in my opinion — leading forensic pathologists in the country and he concluded the boy was beaten over the head and it was a debilitating injury and he would have been rendered incapacitated.

The thing that we found was that the initial fire was staged. There was no question about it. They tried to make it look like some cigarette started the fire in a clothes basket. And clothes don’t burn that readily. Then on top of that we had a couple accelerant detection dogs come out and between their findings and our lab results we found gasoline all over that house.

GCR: And what happened?

MJ: At the preliminary exam, when all was said and done and all the evidence was provided, the judge said the pathologist was full of crap, that a board must of hit the kid’s head even though we clearly showed the only thing that had hit the kid in the head were some ceiling tiles and they are not going to crush his skull two-inches deep. And then basically [the judge] said the gasoline didn’t matter because everyone has gasoline in their house and she dismissed the arson and murder charges against these people. It went on appeal and the circuit judge didn’t necessarily agree with the decision but didn’t feel the district judge abused her position, and as a result the two people that killed this boy and set the house on fire are walking the streets somewhere and I think of that case dang near every day. It’s disgusting.

Pretty strong words, almost a decade after the fact. 

But at the end of the day, another thing we have to ask ourselves is this: Should the State be able to continue to call something homicide if they are ultimately unable to prove it?

I don't know what happened to Billy Essex in those early morning hours. Maybe they all got it wrong - the investigators, the firefighters, the Prosecutor, the Medical Examiner - but I do know that Billy Essex lived and he died and a great many people who never even knew the little boy have not forgotten.

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