The judge who once told convicted murderer Ray Girdler he should die now says Girdler probably shouldn't have been convicted in the first place.
Yavapai County Superior Court Judge James Sult has set aside the 71-year-prison sentence of the Prescott man, who was convicted eight years ago of torching his wife and daughter.
Sult's decision, filed September 10, said Girdler, now 44, would probably be found innocent if a new trial were held.
The ruling came after intermittent hearings from June to August of this year and is based on a court procedure allowing for new trials if new evidence is uncovered. Girdler may regain his freedom sometime next week. Defense attorneys have filed a motion for his release. Yavapai County Attorney Charles "Chick" Hastings has not said whether he opposes such a release or if he will retry the case. As New Times first reported (in the August 22 issue), Girdler may well have been unjustly convicted in 1982 of murdering his wife, Sherrie, 28, and his three-year-old daughter, Jennifer. The mother and child died in an early-morning fire in their mobile home just east of Prescott. The only survivor of the tragedy, Girdler was convicted of two counts of arson-murder and one count of arson.
Girdler's testimony--once thought unbelievable by a judge and a jury--now is considered the most credible version of what happened November 20, 1981, fire experts say.
The judge--the same one who sentenced Girdler in 1982--agreed, saying in his ruling, "This `newly discovered' evidence, had it been introduced at trial in this matter, would probably have changed the verdict of the jury."
Defense experts argued that Girdler's home was not torched by arson, but destroyed by a "flashover" fire. It was explained by experts as a newfound phenomenon that until recently was widely misunderstood in fire-investigation circles. Judge Sult agreed, saying the "bulk of the knowledge in the fire-investigation community with respect to these types of fires became known after" Girdler trial.
Flashover, experts say, occurs when hot gases produced in the beginning of a fire collect and build heat at the ceiling level. When the temperature of those gases reaches approximately 1,100 degrees Fahrenheit, everything in the room catches on fire--a slow explosion of flames. Flashover, experts say, deceived fire investigators because it mimics the results of an arson fire ignited by liquid accelerants such as gasoline. They said a smoldering cigarette or a homemade electrical appliance started the blaze.
The state fire marshal's chief investigator, David Dale, who was the main witness in Girdler's trial and the recent hearing, could not be reached for comment. But Dale said during the hearing that he knew of the phenomenon in 1982 and had ruled out the possibility. Dale testified he still believes Girdler intentionally poured gasoline around his wife and child.
Judge Sult's ruling last week was terse compared with his long-winded 1982 castigation of Girdler.
"Your killing of Jennifer Ann Girdler constitutes the most vile betrayal of the highest trust which is placed on a human being," Sult said from the bench in 1982. "An analysis [of the murder] would surely establish that no mitigating circumstances exist and I would then be in a position to sentence you to a death you so richly deserve. However, I sit as a finder of fact in this sentencing process and as such I am constrained by my duty to find the existence of aggravating circumstances beyond a reasonable doubt. Where desire and duty conflict, duty must prevail and I must confess to a nagging and persistent doubt which I have held almost from the beginning of the trial in this case. The doubt is not one which relates in any way to your guilt but rather relates to the manner in which you accomplished your vile act."
Sult went on to say that Girdler's future life and death behind prison bars would be satisfactory torture.
"I have not sentenced you to death in the gas chamber," Sult said. "I have, however, sentenced you to a death of sorts, perhaps even a crueler and more lingering death. You are now 36 years of age. When you complete these sentences, you will be 100 years old. For the next 64 years, there will not be a Ray Girdler. There will merely be another number on another uniform in the Arizona State Prison--another faceless, nameless entity. You will be deprived of freedom . . . This death of freedom you will no doubt endure. It will most likely become the only way of life you will know on a conscious level. Nevertheless, although buried deeper year by year, the memory of these freedoms will remain and you will never entirely forget them."
In contrast, Sult's September 10 ruling was brief and couched in legalese, saying that "the Court concludes that petitioner is entitled to a new trial."
Girdler, who is being housed temporarily in the Yavapai County Jail, could not be reached for comment. He has pleaded his innocence throughout the past eight years, six of which he spent in solitary confinement at Arizona State Prison in Florence. He said at the recent hearing that he still stands by the words he told Sult in 1982.
"I stand before you tried, convicted and about to be sentenced for a crime I did not commit," Girdler told Sult in 1982. "It may be that this sentence may result in my death by one means or another. My death will not eliminate nor change the truth of what occurred on the evening of November 20. Therefore, I simply want to state that I personally do not feel that justice has been served in this case. Furthermore, I do not feel that anyone in Yavapai County has anything to be proud of over this case."
Girdler had been unsuccessful in getting someone to believe in his innocence until he read a newspaper story about the case of John Henry Knapp, a Phoenix man who was sentenced to Death Row for arson murder until winning reversal of his conviction in 1987. The attorneys who handled Knapp's case built Girdler's case on the same evidence that had convinced Maricopa County Judge Stephen Gerst to overturn Knapp's 1974 conviction of torching his two children.
Dale, the prosecution's star witness in both the Girdler and Knapp cases, was attacked by defense attorneys in the Girdler hearing.
"David Dale literally didn't know what the Center for Fire Research was," defense attorney Larry Hammond said at the hearing. "He didn't know there was an underwriter's laboratory studying fires. Can you imagine that? Being the highest-level investigator in the state and not even knowing there are agencies in the country that are studying this."
Hammond says he was "incensed" after reading the transcripts of Girdler's 1982 sentencing hearing. He says Dale volunteered his time at the hearing to paint an even blacker picture of his client than the investigator had testified to at trial to ensure Girdler got the death penalty. Prosecutor Jim Landis pointed out the unusual nature of Dale's testimony by writing a letter of commendation about Dale to his boss, the state fire marshal.
Hammond says his law firm, Meyer, Hendricks, Victor, Osborn, and Maledon, is considering starting a foundation to try to correct the lack of knowledge among lawyers and fire investigators about cases similar to Girdler's and Knapp's.
"There are a lot of lawyers in this state who have been confronted by the same experience," Hammond says. "Our cases are not the only arson cases in Arizona. When we began the Girdler case, we received tremendous support from a wide variety of people from around the state and around the country. There should be some program, foundation or something put together to assist people who've been involved in these types of cases."
Sult's ruling contends that fire investigators didn't understand flashovers until after 1982.
"That evidence or knowledge which did exist prior to 1982 was not known to the fire-investigation community at large and specifically was not known to either the state's experts or the defense expert at the trial," Sult wrote. "Moreover, the information was not available to the fire-investigation community and could not have been known by any of the experts at the trial.
