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Debora J. GREEN

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Parricide - Arson - Poisoned her husband with ricin
Number of victims: 2
Date of murders: October 24, 1995
Date of arrest: November 22, 1995
Date of birth: February 28, 1951
Victims profile: Two of her children, Kelly, 13, and Tim, 6
Method of murder: Fire (smoke inhalation)
Location: Prairie Village, Johnson County, Kansas, USA
Status: Pleaded no contest on April 17, 1996. Sentenced to two concurrent forty-year prison sentences on May 30, 1996
 
 

 
 
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Debora Green (born Debora Jones, February 28, 1951) is an American physician who pleaded no contest to setting a 1995 fire which burned down her family's home and killed two of her children, and to poisoning her husband with ricin with the intention of causing his death.

The case was sensational, and covered heavily by news media, especially in the Kansas-Missouri area, where the crimes occurred. Crime writer Ann Rule covered the case in her book Bitter Harvest: A Woman's Fury, a Mother's Sacrifice.. Though Green has claimed in recent years that her plea was placed during a period of diminished mental capacity, she has not been granted a new trial.

Born in Illinois, Green was a bright child who had little difficulty with school. Though initially more interested in engineering, she chose chemistry and then medicine as her specialties, eventually going into medical practice in emergency medicine, internal medicine, hematology, and oncology at various points in her life. While practicing emergency medicine, Green met and married Michael Farrar, also a doctor.

The couple had three children, Timothy, Kate, and Kelly, between 1982 and 1988. The couple's marriage was tumultuous, with an informal separation in 1994. After a fire damaged the home Green and the children were living in during the separation, Green and Farrar reconciled, but the state of the marriage continued to worsen, and Farrar filed for divorce in July 1995.

Farrar fell violently ill repeatedly in August and September 1995, and despite numerous hospitalizations, he and his doctors were unable to pinpoint the source of his illness. Green's emotional stability deteriorated throughout the summer of 1995, and she began abusing alcohol, even while supervising her children.

On October 24, 1995, the Farrar family home, occupied by Green and the couple's three children, caught fire. Kate Farrar and Debora Green escaped the home safely, but despite the efforts of firefighters, Timothy and Kelly Farrar died in the blaze.

Fire investigators soon determined that the cause of the fire had been arson, and based on interviews with both Green and Farrar immediately following the fire, police suspected Green to be the responsible party. Further investigation showed that trails of accelerant in the house led back to Green's bedroom, and that the source of Michael Farrar's intractable illness had been ricin, a poison served to him in his food by Green.

Green was arrested on November 22, 1995 and charged with two counts of first-degree murder, two counts of attempted first-degree murder, and one count of aggravated arson. Held on $3,000,000 bail, the highest ever required at that point in time by Johnson County, Kansas, Green maintained her innocence throughout pre-trial motions and a show cause hearing. Green's defense postulated that Timothy Farrar, who had had a troubled relationship with his father, may have poisoned Farrar and set fire to the family home; however, when the defense's own investigators verified the strength of forensic evidence against Green, Green agreed to an Alford plea to all charges.

On April 17, 1996, Green appeared in court to answer the agreed-upon charges, and on May 30, 1996 she was sentenced to two concurrent forty-year prison sentences, minus the time she had served prior to sentencing. Green has petitioned for a new trial twice on the basis of having been rendered incompetent for plea bargaining by the psychiatric medications she was taking at the time of her hearings; both motions for a new trial have been denied.

Early life and medical training

Green was born February 28, 1951, the second of two daughters born to Joan and Bob Jones of Havana, Illinois. She showed early intellectual promise, and is reported to have taught herself to read and write before she was three years old. In her school years, Green participated in a number of school activities at the two high schools she attended and was a National Merit Scholar and co-valedictorian of her high school class. Those who knew Green at the time later described her as "[fitting] right in" and someone who was "going to be successful".

Green attended the University of Illinois, beginning in the fall of 1969, with a major in chemistry. Though she had initially intended to pursue chemical engineering as a career, she opted to attend medical school after graduating in 1972 with a degree in chemistry, believing that the market was flooded with engineers and her prospects would be better as a doctor. She attended the University of Kansas School of Medicine from 1972 to her graduation from there in 1975. Green chose emergency medicine as her initial specialty, and began a residency in the Truman Medical Center Emergency Room after her graduation from medical school.

Throughout her undergraduate and medical school careers, Green dated Duane M. J. Green, an engineer. The couple married while she was studying at the University of Kansas. The Greens lived together in Independence, Missouri while Debora finished her residency, but by 1978, they had separated and then divorced. Debora cited basic incompatibility as the reason for the divorce—"[...W]e had absolutely no common interests", she was later quoted as saying—but the divorce was friendly.

During the period the Greens were separated, Debora Green met Michael Farrar, a student in his twenties, completing his last year of medical school. Farrar was struck by Green's intelligence and vitality, though he was embarrassed by her habit of explosively losing her temper at small slights; Green felt that Farrar was a stable presence upon whom she could depend. The couple were married on May 26, 1979. When Farrar was accepted for an internal medicine residency at the University of Cincinnati, the couple moved to Ohio. Green went into practice at Jewish Hospital as an emergency physician, but eventually decided to switch specialties, as she was dissatisfied with emergency medicine. She began a second residency in internal medicine, joining Farrar's program.

Farrar-Green marriage

Children and medical career

By the early 1980s, the Farrars were living in Cincinnati, Ohio. Despite Green suffering a number of medical issues, including surgery on an infected wrist, cerebellar migraines, and insomina, the Farrars' first child, Timothy, was born on January 20, 1982. After a six-week maternity leave, Green returned to her fellowship in hematology and oncology at the University of Cincinnati.

Two years later, a second child, Kate Farrar, was born. Green again returned to her studies after maternity leave. By 1985, Green had completed her fellowship. Green went into private practice in hematology and oncology while Farrar finished the last year of his cardiology fellowship. Both Green and Farrar then joined established medical practices in the Kansas City, Missouri area. After a year, Green began her own private practice there, which prospered until Green became pregnant for a third time and was forced to take time off work for another maternity leave. The couple's third child, Kelly Farrar, was born on December 13, 1988.

As the Farrar children grew old enough, they were enrolled in The Pembroke Hill School, a private school in Kansas City. Green was reportedly a good mother who wanted the best for her children and encouraged them in their activities of choice. Though she attempted to resume her medical career after her last maternity leave, Green's practice faltered and her chronic pain increased, and in 1992, she gave up her practice and became a homemaker, working part-time out of the family's house on medical peer reviews and Medicaid processing. Medical professionals who had worked with Green during this time described her as "unfeeling to the patients" and "obsessive about [her husband]".

Farrar later alleged that Green had been self-medicating with sedatives and narcotics to treat her pain from infections and injuries periodically throughout their marriage; he recounted to author Ann Rule several episodes in which he had confronted Green with issues regarding her demeanor, handwriting, and speech patterns which indicated drug intoxication, and said that Green had agreed to stop using the medications each time he confronted her.

The Farrar children all did activities outside the home. Timothy played both soccer and ice hockey, while Kate was a ballerina who was dancing with the State Ballet of Missouri by the age of ten. While Farrar worked long hours in his medical practice, Green always accompanied her children to their activities, though perception of her by other parents at the activities varied – some felt she was a supportive mother, while others felt she drove her children too hard and put down their efforts too often.

Green and Farrar

The marriage between Farrar and Green was never ideal, according to Farrar, who later recalled that neither he nor Green had spoken of love to each other, even at the beginning of their marriage. Farrar recounted that Green seemed to lack the coping skills most adults bring to bear in challenging times; when she went into a rage, she sometimes harmed herself or broke things, and rarely gave any thought to whether she was in private or in public during these episodes. By the early 1990s, Farrar was handling his wife's temper by working long hours away from the home to avoid arguments and what he perceived as his wife's shortcomings as a homemaker. When the couple fought, Green responded by treating the children, especially Tim, as small adults and telling them about what their father had done wrong. The children, swayed by their mother's opinions about their father, began to resent and disobey Farrar, to the point where Timothy and Farrar had physical altercations.

In January 1994, Farrar asked Green for a divorce. Although Green believed Farrar was having affairs outside the marriage, she later claimed to have been taken by surprise by his desire to end the marriage and she responded to his asking for a divorce explosively, shouting and throwing things. Farrar moved out of the family home, though Farrar and Green remained in contact and informally shared custody of the children. With the pressure of living together mitigated, the couple attempted a reconciliation, and decided that a larger house would ease some of the disorganization that had affected their marriage. In May, after four months of separation, they put in a bid on a six-bedroom home in Prairie Village, Kansas, but before the sale went through, the couple backed out of the deal. Farrar later said that he had "backed down" in the face of his ongoing worries about the state of his marriage and the couple's debt load.

Shortly after the Prairie Village home purchase fell through, however, the couple's Missouri home caught fire while the family was out. Insurance investigators later determined that the fire was caused by an electrical short in a power cord. Though the house was reparable and the couple's home insurance paid out on the damage and lost property, the couple decided to move on, and Green and the children moved into the apartment in which Farrar had been living during the separation while the sale of the Prairie Village home was re-negotiated.

The couple put extra effort into avoiding the things that had caused strife prior to their separation: Green, despite being an indifferent cook and housekeeper, tried to focus on cooking and keeping the new house cleaner, while Farrar vowed to curtail his work hours so that he could spend more time with the family. The improvements lasted mere months, however, and by the end of 1994, both Green and Farrar had fallen back to their old habits and the marriage was again floundering. Fearful of another confrontation with Green, however, and looking forward to a trip to Peru the family had planned for the summer of 1995, Farrar decided to wait until after the trip to raise the issue of a divorce again.

Divorce

During the Peru trip in June 1995, which was sponsored by the Pembroke Hill School, Farrar met Margaret Hacker, whose children also attended the school. Hacker, a registered nurse married to an anesthesiologist, was also unhappy with her marriage and she and Farrar became friends on the trip. Hacker and Farrar began a physical affair shortly after both families returned from Peru. In late July, Farrar again asked Green for a divorce. Green responded "hysterical[ly]" and rushed to tell the children that their father was leaving them. Green was especially upset that a broken home might disqualify the children from participating in debutante events such as the Belles of the American Royal when they were older.

Despite the impending divorce, Farrar initially declined to move out of the family home. He was concerned that Green, who had never been a heavy drinker of alcohol, was suddenly consuming large quantities of it while supervising the children. Though Green continued her routine of ferrying the children to after-school activities, she would spend her evenings drinking at home, sometimes to the point of unconsciousness and nearly always to the point of removing what inhibitions she had left about her language in front of the children. On one occasion, Farrar was called home from work by the children, who had found their mother unresponsive. Green had disappeared from the home by the time Farrar arrived there, and though he eventually discovered that she had been hiding in the basement while he searched for her, she claimed at the time to have been wandering the town, hoping to be hit by a car.

Fire

In the early-morning hours of October 24, Farrar received a phone call at his apartment from a neighbor who shouted that his house—meaning the Farrar-Green family home, in Prairie Village—was on fire. Farrar immediately drove to the house.

A 9-1-1 call placed from the house at 12:20 a.m. alerted police dispatchers to possible trouble at the home, though the caller did not speak before hanging up. A police cruiser was dispatched to investigate the situation and, upon arriving, found the house on fire. Fire trucks were dispatched at 12:27 to what was classed as a "two-alarm" fire. The first firefighters on the scene reported that Green and her ten-year-old daughter Kate were safely outside the house by the time they had arrived. Both were in their nightclothes. Kate begged firefighters to help her brother and sister, six-year-old Kelly and thirteen-year-old Timothy, who were still inside the house. Green, who stood next to her daughter, was reported to have been "very calm, very cool". At least two firefighters attempted to search inside the home for the missing children, but the house was so consumed by flames at that point that they were only able to search a small portion of the ground level before the structure became unsafe for them.

By the time the fire was under control, the house was almost totally destroyed, leaving behind only the garage and some front stonework. It had been a remarkably rapid destruction of the house, and although high winds had contributed to the intensity of the fire, authorities deemed the speed with which the house had become fully involved suspicious enough to bring in arson investigators. The bodies of Tim and Kelly Farrar were not recovered until the next morning, when the fire scene had cooled enough to allow safe searching. Kelly had died in her bed, most likely of smoke inhalation. Tim's body was found on the ground floor, near the kitchen. Investigators initially assumed that he had died trying to escape the house, but it was later determined that he had died in or near his bedroom, also most likely of smoke inhalation and heat, and that his body had fallen through burned flooring to where it was discovered.

Police questioning

The remaining members of the Farrar-Green family were all transported immediately from the fire scene to police headquarters for questioning, while detectives were sent to the house to begin an investigation. Prairie Village police detectives separated Green, Farrar, and their daughter (who was accompanied by Farrar's parents) and began questioning Green.

Green's account

According to video of Green's interview with the police, Green reported that the family had a normal day prior to the fire. The children had gone to school and done their chores, and then attended various after-school activities – Kate, dance class, and Tim, a hockey game. Michael Farrar had taken Tim and Kelly to the hockey game, while Green took Kate to ballet lessons. The family regrouped around 9 p.m. when Farrar dropped Tim and Kelly back off at the Prairie Village house in time for dinner.

Green told police that she drank one or two alcoholic drinks after dinner and then went to her bedroom, leaving it only to speak to her son Tim in the kitchen some time between ten and eleven in the evening, shortly before he went to bed. Kelly and Kate had gone to bed earlier, each taking one of the family's two dogs with them. Green said that she had fallen asleep around eleven-thirty. At some point in the evening prior to falling asleep, she recalled, she had spoken to Farrar, who had phoned the house asking who there had paged him. She told police that she and Farrar were in the process of divorcing, though she did not know how far along in the process they were, and that though the children were very upset about the prospect, she herself was not and was actually looking forward to being able to rebuild her life.

Green was awoken some time after midnight by the sound of the home's built-in fire alarm system. She initially assumed that the sound was a false alarm caused by her dogs triggering the burglar alarm, but when she tried to shut off the alarm at the control panel in her bedroom and it continued sounding, she opened her bedroom door and found smoke in the hallway. She exited the house using a deck that connected to her first-floor bedroom. While standing on the deck, she heard her son Tim on the home's intercom system, calling to ask her what he should do. "He used to be my thirteen-year-old," Green explained to police, and said that she had told him to stay in the house and wait for firefighters to rescue him. She had then knocked on a neighbor's door to ask them to call 911. When she returned to the house, she found Kate, who had climbed through her second-floor bedroom window, on the roof of the home's garage. Green called to Kate to jump, and Kate landed safely on the ground in front of Green.

Detectives noted that during her interview Green did not appear to be or have been crying, and her manner was "talkative, even cheerful". She repeatedly referred to Tim and Kelly Farrar in the past tense, and referred to all of her children by their ages rather than their names. Her accounts of times from the previous evening wavered, and she seemed uncertain what time she had done things like gone to bed.

At 5:30 a.m., a detective arrived from the fire scene to advise those at the police station that Tim and Kelly Farrar had been found dead in the home. Green initially reacted with sadness that quickly changed to anger. She shouted at detectives, claiming that firefighters had not done enough to save the children. Where previously she had been cooperative and friendly with the detectives interviewing her, she now began to attack them verbally, calling investigators and their methods "pathetic", alleging that they had withheld from her knowledge of the children's deaths, and demanding to be allowed to see Farrar and the remains of the family's house. Though Green stressed to police that she wanted to be the one to "tell my husband our babies are dead," her request was not granted.

Green was released from the police station in the early morning of October 24 after questioning. With the family home burned down, she had nowhere to stay. Farrar refused to let her stay in his apartment, but gave her some cash, and she rented a room in a local hotel. Green's lawyer for the couple's divorce, Ellen Ryan, found her there later in the day, distraught. She repeatedly asked Ryan whether her children had died, chanted rhythmically about their deaths, and seemed unable to care for herself. Green was transported to a local hospital for treatment but remained emotionally unstable, suffering from insomnia and appearing to Ryan to be unable to take care of day-to-day life, even after her release from the hospital.

Farrar's account

Police began to interview Farrar at 6:20 a.m. He was immediately informed that the bodies of Tim and Kelly had been recovered.

Farrar told police about the deterioration of his marriage and health over the past six months. In August 1995, Farrar had fallen ill with nausea, vomiting, and diarrhea. He initially assumed it was a residual effect of the traveler's diarrhea many people on the Peru trip had contracted while there. Though he recovered from the initial bout of symptoms, he relapsed about a week later, and on August 18 Farrar was hospitalized with severe dehydration and high fever. In the hospital, he developed sepsis. The hospital identified streptococcus viridans, which had probably leaked through damaged digestive tissue as a result of Farrar's severe diarrhea, as the source of the sepsis but were unable to pinpoint the root cause of the gastrointestinal illness itself. Though Farrar's illness was severe and possibly life-threatening, he eventually recovered and was released from the hospital on August 25. That night, however, shortly after eating a dinner that Green had served him, Farrar again suffered vomiting and diarrhea and had to be hospitalized. A third bout of symptoms struck on September 4, days after he was released from the hospital for the second time. Basing their conclusions on the likelihood that his illness was related to the Peru trip, doctors narrowed down the possible causes for Farrar's gastrointestinal issues to a handful, though none fit his symptoms perfectly: typhoid fever, tropical sprue, or gluten-sensitive enteropathy. Farrar had noticed that each time he returned home from the hospital, he became ill again almost immediately, and he speculated that it may have been due to the stress of his dissolving marriage or the change from a bland hospital diet to a normal home one. When Farrar's girlfriend, Margaret Hacker, told him she suspected Green was poisoning him, he initially wrote off the idea as ridiculous.

Though Green was caring for Farrar in the family home while he recovered from his repeated bouts of illness, she was also continuing to drink heavily and, increasingly often, claiming to be contemplating suicide or to want Margaret Hacker dead. In late September, Farrar searched the house and her belongings. In her purse, he discovered seed packets labeled castor beans, a copy of a supposedly-anonymous letter that had been sent to Farrar urging him to not divorce Green, and empty vials of potassium chloride. He removed all three items from her purse and hid them.

The next day, he asked Green—who had no interest in gardening that he knew of—what she had intended to do with the seed packets. Though she initially claimed that she was going to plant them, when pressed she said that she intended to use them to commit suicide. Green's drinking was especially heavy that day, and as her behavior grew stranger, Farrar contacted the police for assistance in getting Green into psychiatric care. Police who responded to the home described Farrar and the children as "shaken" and Green's behavior as "bizarre". Though Green did not seem to hold the police's presence against them and gave them no resistance, she denied being suicidal and called Farrar a series of obscenities. Farrar showed police the seed packets and other items he had found in her purse the day before, and the police transported Green to a nearby emergency room. The physician who attended her there found Green to be smelling strongly of alcohol, but not visibly drunk. Though Green appeared unkempt, the doctor felt her demeanor was not unusual for someone going through a bitter divorce and noted that Green professed no desire to hurt herself or others when the doctor interviewed her privately. However, when Farrar came into view in the hospital, Green's demeanor changed. According to the doctor, Green "spit at him", called him obscene names, and stated that "You're going to get these kids over our dead bodies". Though Green, with some persuasion by the doctor, initially agreed to a voluntary commitment, Green shortly thereafter left the ER without informing anyone. She was found hours later, apparently having decided to walk home from the hospital, and brought back to the hospital. There, she agreed again to a voluntary commitment to the Menninger Clinic in Topeka, Kansas.

While in the hospital for treatment, Green was diagnosed with "major bipolar depression with suicidal impulses" and placed on Prozac, Tranxene, and Klonopin. She returned home after four days in the hospital. Farrar, who had researched castor beans in the interim and come to the conclusion that Green had poisoned his food with the ricin that could be derived from the beans, moved out immediately upon Green's return home.

The day of the fire, about a month after Farrar's last release from the hospital, Farrar said that he had taken the day off from work – the first day of what he intended to be a week-long vacation to recover some strength after re-starting his job post-hospital. He had spent the afternoon with Margaret Hacker and then picked up Tim and Kelly for Tim's hockey game. After dropping the children back off with their mother at about 8:45, he had dinner with Hacker, leaving her around 11:15 in the evening.

Throughout the evening on October 23, 1995, a series of phone calls between Green and Farrar escalated into a confrontation. Farrar was convinced that Green was continuing to drink heavily while she should have been caring for the children, and he told Green that he knew she'd poisoned him and that Social Services might be called to protect the children if she failed to get her life in order. After the last call between Green and Farrar, Farrar watched television alone in his apartment until about 12:30, when a neighbor's phone call alerted him to the fire.

During his police interview after the fire, Farrar's red eyes and trembling voice were apparent to detectives. He stated that Green had been "very concerned about money" in the context of their impending divorce, and that she may have set fire to the house to garner an insurance payout, but that she had never given any indication of intending to harm her children.

After his interview with the police, Farrar immediately filed for divorce from Green and for custody of Kate, who had been taken in by his parents while Green and Farrar dealt with the police. A court later awarded temporary custody of Kate to Farrar's parents, due to Green's instability and Kate's professed anger with her father. Green was allowed supervised visitation during this period, while Farrar's visitation was not required to be supervised.

Kate Farrar's account

Kate Farrar was interviewed by investigators on October 26. She stated that on the night of the fire, she had woken up to find the fire already burning. Seeing smoke seeping into her room, she opened the bedroom door and called to her brother, then closed the door and placed the hang-up 911 call that had alerted police. She had then crawled out of her bedroom window to escape the fire.

Kate reported to police that when she had called to her mother after escaping the house onto the garage roof, Green had been "terribly upset" and called to Kate to jump into her arms. Though Green missed catching her when she did jump, Kate had not been hurt. When mother and daughter had run into Farrar minutes later, Kate said, Farrar had been accusatory toward Green and Green had been crying and worried about her missing children.

According to Kate Farrar, Farrar had moved out of the family home and spurned Green's desire for an amicable separation. She stressed that she loved and respected her mother and that all of the children had had good relationships with Green, but that she was angry at her father for upsetting her mother by leaving. Pressed, she acknowledged that her mother had begun to drink large quantities of alcohol. She denied that matches were something she'd ever seen in the house and expressed surprise that Tim had not escaped the fire the same way she had, via his bedroom window onto the roof.

Investigation

Fire investigation

The Eastern Kansas Multi-Agency Task Force was called out to conduct an arson investigation on the ruined Prairie Village house on October 24. The task force was staffed by a number of fire investigators and search teams from throughout the area and would focus on determining the origin and cause of the fatal fire, searching through debris for usable evidence, and interviewing witnesses to the fire. A dog trained to detect the scent of fire accelerants was brought in to assist the investigators.

The arson investigators were able to rule out common causes of accidental fires, including electrical panels and furnaces. They determined that the basement level of the home, which contained the furnaces, had not been a point of origin for the fire, though two small orphan fires unconnected to the main burning of the house had apparently burned in that area. Pour patterns were found on the ground and second floors, indicating that a flammable liquid had been poured there and had covered many areas of the ground floor, blocked off the stairway from the second floor to the ground floor, and covered much of the hallway on the second floor. The pour patterns stopped at the door of the house's master bedroom, but had soaked into carpeting in the hallway leading to the children's bedrooms. Investigators were unable to determine the precise liquid that had been used as an accelerant, though they proved that a can of gasoline the family kept in a shed had not been used. The amount of accelerant used was identified as "less than ten gallons and more than three gallons".

Determining based on these findings that the fire was arson, the fire investigators called in a second area task force, this one focused on homicide investigation, on October 26. On October 27, the district attorney for Johnson County was informed that the investigation was now criminal.

Police investigations

Arson case

In seeking to find who had set fire to the Farrar-Green home, investigators looked first for physical evidence of fire-setting upon those who had been in the house. They suspected that because of the use of accelerant, the fire may have flashed over at the point of ignition and singed or burned the setter. Accordingly, they tested clothing worn by both Farrar and Green that night and took samples of the hair of both. Neither Green's nor Farrar's clothing showed evidence of having been in contact with accelerant; Farrar's hair showed no singeing, but Green's—which had been cut twice between the time of the fire and the time the police took hair samples from her—showed "significant singeing". Detectives recalled that Green had denied ever having been in close proximity to flames; according to Green, she had left the house after seeing smoke and had never contacted the fire either on the deck outside her bedroom or in the process of coaxing Kate Farrar off the garage roof. Neighbors of the family reported that when Green had come to their door to ask them to call for help, her hair had been wet. Though their suspicions pointed to Debora Green, investigators continued to receive tips attributing the fire to any number of people and the investigation continued with no public statement about suspects.

Poisoning case

Detectives, alerted to the possibility of Michael Farrar having been poisoned in the months prior to the fire, began to trace the origin of the castor beans that had been turned into police investigating the September domestic dispute that had ended with Green being admitted to the hospital. The label on the seed packets identified them as a product of a chain of stores called Earl May, and an officer on the September call had noted the presence of contact information for an Earl May store in Olathe, Kansas in Green's address book. Detectives now contacted nearby Earl May stores to ask if any employees recalled selling packets of castor beans, which were out of season in the fall. A clerk at a store in Missouri reported having spoken to a woman in September who had requested that the store order ten packets of the out-of-season seeds, which she said she needed for schoolwork. The clerk provided a description of the buyer that corresponded to Green, and tentatively identified her in a photo line-up as the buyer. Register tapes in the store's records showed that a purchase corresponding to the amount the beans would have cost had been made on the afternoon of either September 20 or 22, though no records were found in any Earl May store of earlier such purchases, which would have been necessary based on Farrar first having become ill in the summer.

Farrar underwent surgery in November 1995 as treatment for his ongoing health issues which were believed to be caused by poisoning. Prior to the surgery, he submitted blood samples to Johnson County's crime lab to be tested for ricin antibodies.

Arrest

In the first week of November 1995, media reported that the investigation had narrowed the field of suspects down, first to those intimately familiar with the house and then to one person. News reports in subsequent days speculated that the apparent poisoning of Michael Farrar may have been linked to the case, based on the trajectory of the police investigation, but officials declined to name the person suspected in either case.

Green was arrested on November 22 in Kansas City, Missouri, shortly after dropping her daughter off for ballet practice. Though Green's attorneys had requested that should an arrest be imminent, authorities allow Green to turn herself in, the police and district attorney felt that Green's behavior was too unpredictable and they chose to arrest her with no warning. Green was charged with two counts of first-degree murder, two counts of attempted first-degree murder, and one count of aggravated arson. In a subsequent press conference, District Attorney Paul J. Morrison cited a "domestic situation" as the motive for Green's alleged crimes. Green was initially held in a Missouri jail, then extradited to Johnson County Adult Detention Center in Kansas, on $3,000,000 bond, the highest bail ever asked for in Johnson County.

Show cause hearing

A pretrial show cause hearing in the Green case began in January 1996, with Green represented by Dennis Moore and Kevin Moriarty. Green's defense claimed that the fire in the family home had been set not by Debora Green, but by her son, Tim Farrar, who had once been caught by local police setting off Molotov cocktails. The defense also attempted to attribute Farrar's poisoning to Tim, who did much of the cooking in the household.

State testimony

Michael Farrar underwent surgery in December 1995 to treat an abscess in his brain caused by the poisoning. In case Farrar did not survive, prosecutors, who felt that his testimony was key to their case, videotaped his testimony beforehand. The surgery was a success, however, and Farrar, still recovering, testified in person about Green's problems with alcohol and the break-up of their marriage. Under cross-examination by Green's counsel, he admitted that he, as well as Green, had contributed to the problems in the couple's marriage and that his relationship with his son had been so adversarial that it had sometimes came to blows.

Witnesses called by the State supported Farrar's and the prosecutors' earlier claims that police had been called to the home a month prior to the fire, that Green's behavior had been cause for concern at the time, and that Farrar had turned in to police at that time seed packets containing castor beans. The Earl May store clerk who had identified Green as the purchaser of multiple packets of castor bean seeds testified to that effect. Medical evidence was presented that Farrar's illness had not fit neatly within the parameters of any known disease, but that its presentation matched the symptoms of ricin poisoning. An FBI criminologist provided testimony that he had tested for ricin antibodies in Farrar's blood approximately two months after Farrar's last acute symptoms, and found antibodies there in such large amounts that he was able to confidently state that Farrar had been subjected to repeated exposures to ricin.

A police officer testified that as the first responder to the fire scene in the early morning of October 24, he had found Kate Farrar to be "very frantic" with worry over her siblings, but that Debora Green had showed little, if any emotion or concern. The defense argued that the psychiatric medications Green had been on since her September hospitalization could cause blunted affect which could be mistaken for a lack of emotion.

Arson investigators testified as to how they had located the origin and cause of the house fire, stressing that the multiple unconnected, small fires they had found in the home's basement were evidence of the fire having been set purposely and that char patterns on the house's floors were evidence of a liquid accelerant having been used to start the fire. The living room floor had contained the most significant amount of accelerant, and the trail of accelerant had ended at the door of the master bedroom, which had been open while the fire burned. The state of the bedroom door was in contradiction to Green's prior testimony to investigators that her bedroom door had been closed and she had only opened it briefly to look into the hallway.

Detectives who had spoken to both Green and Farrar the night of the fire testified as to Green's unusual affect during their interview, and a videotape of the questioning was played, including Green's statements about having urged Tim Farrar to stay in the burning house and her references to her children in the past tense.

The State rested on January 31, 1996.

Defense testimony

Defense testimony focused on the theory that Tim Farrar, angry at his father, had set fire to the home. Friends of Tim's testified that Tim had had a fascination with fire and that he had told friends that he knew how to make bombs. A neighbor testified that he had once caught Tim burning some grass in the neighbor's yard. A former nanny testified that she had heard Tim speak about wanting his father dead and planning to burn down the family's house, and had caught him multiple times setting or with the implements to set fires. On cross-examination, she admitted that she had not seen Tim Farrar for years and agreed that she had not reported Tim's fascination with fire to his parents or the police when he had expressed it to her.

The defense rested on February 1. The presiding judge ruled that probable cause had been shown to hold Debora Green for trial and her arraignment date was set for February 8, with her trial being projected to start in the summer.

Post-hearing events

Prosecutors resolved to ask for the death penalty when the case went to trial, citing the fact that Green's alleged crime had involved more than one victim. Faced with the possibility of the death penalty, Green's defense team brought in Sean O'Brien, a representative of a Missouri anti-capital-punishment group.

A series of legal maneuverings involving both sides of the case took place in the late winter and early spring of 1996. Defense attorneys requested that cameras be barred from Green's eventual trial. The request was rejected. Green was judged by court-appointed psychologists to be competent to stand trial and was denied a reduction in bail. The presiding judge ruled that she would stand trial once, for all of the charges against her, rather than be tried separately on each charge.

Green's defense team launched its own investigation into the fire, hoping to shake state witnesses' testimony identifying it as arson. Instead, they found that accelerant had, indeed, been used to stoke the fire and that a robe belonging to Green had been found on the floor of the master bathroom, burned in a manner that indicated it had been worn while one of the unconnected fires was set. According to Ellen Ryan, when confronted with this evidence, Green acknowledged having set the fire that destroyed her home, but denied having any clear memory of the event. She continued to claim that Tim Farrar had been the one who poisoned his father. Green agreed to place an Alford plea of "no contest" to the charges against her.

Plea bargain

On April 13, the defense team notified Paul Morrison that Green wished to plea bargain, and on April 17 the plea was made public when Debora Green appeared in court to plead no contest to five charges – two counts of capital murder, one of arson, and two of attempted first-degree murder. In exchange for being allowed to avoid the death penalty, the no contest plea called for Green to accept a prison sentence of a minimum of forty years without the possibility of parole. Green denied being under the influence of any drug which would affect her judgment in making her plea or her ability to understand the proceedings she was participating in.

After listening to a reading of the prosecution's case against her, Green read a statement to the court in which she said that she understood that the state had "substantial evidence" that she had caused her children's deaths, and that though her attorneys were prepared to provide evidence that she had been "not in control of myself" at the time of the children's deaths, she was choosing not to contest the state's evidence in the hope that the end of the case would allow her family, especially her surviving daughter, to begin to heal. In a subsequent press conference, defense counsel Dennis Moore told reporters, "She is accepting responsibility for [the crimes]" but said that "I don't think she ever intended to kill her children."

Green was formally sentenced on May 30, 1996, following testimony by the psychologist who had adjudged her competency. According to Dr. Marilyn Hutchinson, Green was immature and lacked the adult-level ability to cope with emotion. Green read another statement to the court and was formally sentenced to two concurrent forty-year prison sentences, minus the one hundred ninety-one days she had already served. Green is serving her sentence at the Topeka Correctional Facility. As of August 2012, Kansas Department of Corrections records show her earliest possible release date as November 21, 2035.

After conviction

Green continued to stress after her sentencing that she had little or no memory of events the night of the fire. In the summer of 1996, she wrote a letter to her daughter claiming that she had taken more than the recommended doses of her medications that night. Similar letters to Michael Farrar varied from claiming she had no memory of the night of the fire to remembering firmly that she was innocent of the arson. She theorized that Margaret Hacker had set fire to the family's house, and reiterated her claim from the show-cause hearing that Tim had been the one to poison his father. Green said in a 1996 letter to author Ann Rule that she did not believe she had had the mental capacity to set the fatal fire, due to her alcohol abuse. In a later interview with Rule, she blamed her cloudy thinking during her court hearings on her Prozac prescription, and stated that once she had stopped taking the drug, her mind was much clearer.

In 2000, represented by a new legal team, Green filed a request for a new trial on the basis of having been rendered incompetent by the psychiatric medications she was taking at the time of her hearings. Green further alleged that her original attorneys had failed to represent her adequately, instead focusing on avoiding a trial and the death penalty. She later withdrew the request when told that prosecutors would again ask for the death penalty. When the Kansas Supreme Court ruled the state's death penalty unconstitutional in 2004, she filed a second request for a new trial, which was denied in February 2005.

In media

A May 1996 issue of Redbook featured an essay by Ann Slegman, a friend of Green's who lived in the same neighborhood as the Farrar family. The article covered the author's personal history with Green, the fire, and the subsequent investigation and ended with the author's statement that "It is also possible that an entirely different personality—disassociated from the Debora I knew—committed this crime.[...] The Debora I knew would not have killed her children."

Crime author Ann Rule covered the case in her book Bitter Harvest: A Woman's Fury, a Mother's Sacrifice, which provided extensive detail on both the case's development and Green's personal biography. The book was a New York Times Bestseller, though reviewers felt that Rule failed to address Green's motivation for her crimes and that she had treated Green unsympathetically and Farrar over-sympathetically.

Deadly Women, a true-crime documentary program that focuses on crimes committed by women, featured Green's case in a 2010 episode about women who kill their children.


IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 94,162

STATE OF KANSAS, Appellee,
v.
DEBORA J. GREEN, Appellant.

SYLLABUS BY THE COURT

1. When no sentence of death is imposed, an appellate court is not required to review the factual basis for a defendant's plea of guilty or nolo contendere under a heightened reliability standard.

2. Under K.S.A. 2006 Supp. 22-3210(d), a district judge may permit a defendant to withdraw a plea after sentencing to correct manifest injustice.

3. The decision to deny a motion to withdraw a plea, even after sentencing, lies within the discretion of the district court, and that decision will not be disturbed on appeal absent a showing of abuse of discretion. The defendant bears the burden of establishing such an abuse of discretion. Judicial discretion will vary depending upon the character of the question presented for determination. Generally a district judge's decision is protected if reasonable persons could differ about the propriety of the decision, as long as the decision was made within and takes into account any applicable legal standards. An abuse of discretion may be found if a district judge's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards.

4. In evaluating a post-sentencing motion to withdraw a plea, the district court should consider: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.

5. If new evidence disproves an element of a crime, then the factual basis for a guilty or nolo contendere plea to the charge of committing that crime is undermined. It is a defendant's burden to prove that the factual basis of a plea is so undercut by new evidence that the prosecution could not have proved its case beyond a reasonable doubt. In such a situation, the court may permit withdrawal of the plea and may set aside the resulting conviction, because doing so corrects manifest injustice under K.S.A. 2006 Supp. 22-3210(d) and comports with due process.

6. Under the facts of this case, the district court did not abuse its discretion in denying defendant's motion to withdraw her guilty plea.

Appeal from Johnson district court; PETER V. RUDDICK, judge. Opinion filed March 23, 2007. Affirmed.

Angela R. Keck, of Olathe, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Debora J. Green appeals the district court's decision denying her motion to withdraw her no contest plea to two counts of capital murder, one count of attempted capital murder, and one count of aggravated arson.

Underlying Facts and Procedural History

In the early hours of October 24, 1995, a fire destroyed the Prairie Village home of defendant and her estranged husband, killing two of their three children. Defendant and one of her daughters escaped the fire; defendant's husband was not at the home at the time.

On November 10, 1995, the Eastern Kansas Multi-County Task Force issued a report determining that the fire "was an intentionally set incendiary fire caused by ignition of a liquid accelerant applied throughout the structure on the main and second floors"; the fire had "multiple points of origin," including a suspicious area of self-contained fire in the vanity of the master bathroom; "liquid accelerant pour patterns and an unusual magnitude of low burn" were identified; isoparaffins, associated with ignitable liquids, were detected in debris; and "all accidental and natural causes for the fire [such as an intruder, or gas or electrical causes] were eliminated."

These events, coupled with a recent near-fatal ricin poisoning of defendant's husband, supported charges against defendant of two counts of capital murder, one count of attempted capital murder, aggravated arson, and one count of attempted first-degree premeditated murder.

On February 12, 1996, the district court judge ordered defendant to submit to a competency evaluation. Although Dr. Marilyn Hutchinson later expressed concerns about defendant's state of mind on the night of the fire, Hutchinson declared defendant competent to stand trial.

The Plea Hearing

On April 17, 1996, defendant agreed to plead no contest to all charges. In exchange, the State agreed not to seek the death penalty and recommended that her sentences run concurrent. The State submitted a 17-page proffer of the evidence it would submit at trial, which the district judge had the prosecutor read into the record. In addition to the information from the task force report on the cause of the fire, the following summarizes the evidence included in the proffer:

Defendant and her husband, both medical doctors, had a troubled relationship. Defendant's husband had expressed his desire to divorce. They had separated, and the husband had moved out of their Missouri home. At some point, defendant and her husband considered reconciling and buying the Prairie Village home; defendant's husband withdrew his offer on the house after expressing uneasiness with resuming a marital relationship. Shortly thereafter, on May 21, 1994, the house they owned in Missouri was significantly damaged by a fire, and they did purchase the Prairie Village home.

In July 1995, defendant's husband began an extramarital relationship with a woman named Margaret Hacker, and, in late July or early August 1995, he again expressed his intent to obtain a divorce. Defendant's behavior became erratic; she drank heavily; she was unable to supervise the children; she threatened herself and others; and she acted in other inappropriate ways.

On August 4, 1995, defendant called her husband, saying she had left the residence and was walking the streets of Kansas City, hoping someone would kill her. On August 5, her husband came home to find her in the residence; she later told him that she had been hiding under a bed in the basement in an effort to make him worry.

Beginning August 11, defendant's husband became ill, and as time progressed, his condition worsened. He was hospitalized on August 18, 1995, and his physician considered his condition life-threatening. After his condition stabilized, he was released to defendant's home on August 25, 1995. He was home for a few hours, when, after eating, he became violently ill again. He was hospitalized again, stabilized, and released on August 30. After going home, he became ill again on September 4, and his illness forced him back into the hospital, where he stayed until September 11. At the time, physicians were unable to pinpoint the cause of his illness, but they had not tested him for poisoning.

Investigators determined that, before each of the defendant's husband's hospitalizations, he had ingested food served by defendant. After the fire, a sample of defendant's husband's blood was sent, among other places, to the Naval Research Laboratory in Washington, D.C. Testing occurred between November 17 and November 22, 1995; and experts ultimately concluded that his blood had been exposed to ricin, an extremely toxic substance that can be extracted from castor beans. Defendant had an undergraduate degree in chemical engineering.

Defendant's behavior continued to be erratic after her husband's release in mid-September, and he remained in the home because he was concerned about defendant's ability to care for their three children. He ultimately attempted to have defendant committed to a mental institution, summoning police officers to transport her for a mental evaluation on September 25, 1995. Officers discovered her in bed, intoxicated. She was screened by Dr. Pamela McCoy, the emergency room physician, who stated that when defendant's husband came in, defendant spat at him, called him a "fuck hole" and told him "you will get the children over our dead bodies." Defendant's husband showed McCoy defendant's purse, which he had found in the residence. It contained several vials of sodium chloride and packets of castor beans. Also in the purse was an Olathe Earl May Garden Center receipt dated August 7, 1995. Subsequent investigation revealed an address book with an entry in defendant's hand for an Earl May Garden Center in Olathe.

Subsequent investigation also revealed that a second purchase of castor beans had been made on September 20, 1995, from a North Kansas City Earl May. The assistant general manager of the store confirmed defendant's identity and said she had special-ordered the packets. September was an unusual time to purchase castor beans, because their growing season was over. Defendant had told the manager the beans were for her child's science fair project. Investigators determined that none of the defendant's children were involved in such a project.

On October 5, 1995, defendant's husband moved out of the home and into an apartment complex nearby. During the next few days, defendant continued to act in a bizarre manner, which included heavy drinking.

On the evening of October 23, defendant's husband picked up two of the children; took them to a hockey game; and returned them to the Prairie Village home at 8:45 p.m. He then went to Hacker's house and was there until 11:30 p.m. He said he then drove to his apartment and called the defendant's residence. He and defendant argued. He told her he was concerned about her drinking and bizarre behavior, and about the possibility that she had tried to poison him. He told officers later that he told defendant she had better straighten up or he would call authorities; he also told officers that he was very angry during the conversation and that it ended abruptly about midnight.

At 12:21 a.m. on October 24, the police dispatcher received a hang-up 911 call from defendant's residence; police and fire units were dispatched and arrived at 12:27 p.m. to a house fully involved in fire.

At the scene, Corporal Steve Hunt was approached by a "panic stricken" young girl, determined to be Kate Farrar, who asked him to save her brother and sister, who were still in the house. Defendant's neighbors immediately suspected defendant was responsible for the fire. Defendant remained casual and nonchalant during interviews with police; she said she fell asleep in her room with the door closed; an alarm awakened her; she opened the bedroom door, saw smoke, closed the bedroom door, and went outside through a sliding glass door in her bedroom. She did not ask whether her two other children were alive or dead for at least an hour after her interview began. She said that, as she was exiting the house, she heard her son, Timothy, calling through the intercom. She told him to "stay in the house and let the professionals rescue you," even though she knew he had crawled out of his bedroom window to the outside on numerous occasions in the past.

Physical evidence revealed that defendant's bedroom door was open during the fire, which was inconsistent with her version of events. Defendant's hair was singed, which was also inconsistent with her version and consistent with use of accelerant. Discovered on the bed in defendant's bedroom after the fire was a book entitled "Necessary Lies"; its plot involved several children burning to death in an intentionally set house fire; defendant had gotten the book from the public library. Library records also revealed that defendant had recently checked out several books dealing with intrafamilial homicide.

At defendant's plea hearing, her counsel stated that the defense would certainly challenge some of the State's evidence, but the defendant understood that the material above would be presented to the jury if the case proceeded to trial. Defendant then read a prepared statement, saying:

"I am aware that the State can produce substantial evidence that I set the fire that caused the death of my children. My attorneys are ready willing and able to present evidence that I was not in control of myself when Tim and Kelly died.

"However true that may be, defending myself at trial on these charges would only compound the suffering of my family and my daughter, Kate. I love my family very much. I never meant to harm my children but I accept the fact that I will be punished harshly. I believe that it is best to end this now so that we can begin to heal from our horrible loss."

Finding a sufficient factual basis for defendant's guilt on each count, the district judge accepted her plea and imposed a controlling hard 40 life sentence for one of the capital murder counts, ordering all of the additional sentences to run concurrent.

The Motion to Withdraw Plea

On March 22, 2004, defendant filed the instant motion to withdraw her plea as to all counts except the attempted first-degree murder of her husband, citing manifest injustice under K.S.A. 22-3210(d). She argued that evidence of new advances in the science of fire investigation, had they been known at the time of her plea, would have rendered the factual basis of the arson charge, and thus the capital murder and attempted capital murder charges, unreliable and insufficient.

Specifically, she argued that investigators conduct investigations in accord with the National Fire Protection Association's code, NFPA 921: Guide for Fire and Explosion Investigations, which is the de facto standard of care in the fire investigation industry. In 1995, the task force conducted investigations under the 1992 manual; that manual was updated in 2001, and again in 2004. She asserted that the new version of NFPA 921 suggested that several of the factors the task force had relied upon to conclude the fire was the result of arson were inaccurate and might have been attributable to other phenomena.

According to defendant, the fire's "multiple points of origin"–which is "almost always" indicative of arson–were more plausibly explained as "falldown" fire; the "pour patterns," low burn patterns, and the speed and intensity of the fire were better explained by the now more fully understood phenomenon of "flashover" rather than application of an accelerant; and isoparaffins, although associated in 1995 only with a short list of ignitable fluids, were now associated with a long list of commonplace household products, innocently explaining their presence in the debris of the home.

Defendant acknowledged that the State's theory for the fire was "based on the best information available at the time," and that her no contest plea was based on this same information. However, she argued, fire science and investigation had advanced so much over the past decade that the theory put forward by the State "cannot possibly be true."

In a supplemental motion to set aside her plea, filed August 2, 2004, defendant reiterated her argument and added that the factual basis for her plea should be reviewed under a heightened reliability standard because she had faced the possibility of the death penalty.

The district court held a preliminary evidentiary hearing on October 12, 2004, to discuss discovery; the district court limited the plea withdrawal proceeding to "evidence that this could not have been an arson fire."

In a second supplemental motion, filed January 3, 2005, defendant argued that the court should declare the plea bargain void or permit her to withdraw her plea because the death penalty had been declared unconstitutional in State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004).

The hearing on defendant's motion was held on January 10, 2005, before the same judge who had presided at the plea hearing. As a threshold matter, the prosecutor argued that the hearing should not go forward because the defendant's expert was not able to say that the fire was not arson. "Their expert is going to say this fire is an undetermined origin and that isn't enough . . . to reopen a case nine years after a defendant pled because you've got a new expert that's going to say well, I disagree with this part or that part but I can't tell you what caused this fire . . . ."

Defendant argued that the central question before the court was whether reasonable doubt now infected the factual basis for her plea. In her view, the defense need not disprove arson, but need only prove the State could not have proved it beyond a reasonable doubt.

Expert Testimony

Defendant presented the expert testimony of Dr. Gerald Hurst. Hurst had reviewed the file associated with defendant's case, which included several hundred photographs, the police incident log, the task force and fire investigation reports, reports of interviews with firemen and first-responding officers, and complete sets of analyst drafting runs and laboratory results. He opined that since 1995 there had been advancements in the field of fire investigation, particularly in relation to a phenomenon called "flashover" burning. He said it is now known that flashover can cause several of the physical indicators upon which the task force had based its arson conclusion. In particular, "pour patterns" are no longer considered a reliable indicator of use of an accelerant if a fire has progressed to flashover.

"Flashover," as that term is now used in fire investigation, occurs over a short period of time when the heat output of a burning object or a group of objects in a room generates a smoke layer that banks down from the ceiling and reaches a critical temperature–in the range of 500 to 600 degrees centigrade. At that point, radiation becomes so intense that it ignites every exposed combustible surface in the room. Before flashover, there is a hot smoke layer in the top of the room that is clearly divided from clear cool air below; at flashover, the division between hot and cold disappears; everything exposed, often in just a few seconds, springs into flame; and intense "post-flashover" burning occurs. The speed and intensity associated with flashover can result in the charring of baseboards and large burn holes in floors that resemble irregular, pool-shaped "pour patterns." Under today's investigatory standards, Hurst testified, such patterns do not lead to a conclusion that accelerant has been applied. Rather, such evidence is more likely to support a determination that flashover occurred.

Hurst also testified that a more plausible explanation for what the task force had called a suspicious self-contained fire in a vanity drawer of the master bedroom–despite the lack of damage to the master bedroom or bath–came from "falldown," i.e., embers from a burning beam that had fallen in the vicinity and ignited combustible fluids in the open drawer. Also supporting this conclusion, he said, were firefighter reports. The reports indicated firefighters entered the bathroom window and would have walked past the vanity into the bedroom. They showed only light smoke; the fire was in the hallway and starting to come in the bedroom door. Hurst believed this supported his theory that the vanity drawer fire began later.

Hurst suggested that a separate fire near a basement bar, which the task force had characterized as a separate point of origin attributable to an accelerant pour, was more likely to have been caused by one of the firefighters tracking embers from falldown a few feet away.

Hurst also suggested that positive testing for the presence of accelerants was likely to have come from common household products not used to set the fire. Accelerants discovered in a small closed container in the kitchen pantry were likely paint or mineral spirits. Hurst also suggested that, in the garage, which was not severely damaged, a labeled jug of Gulflite charcoal lighter fluid had been knocked over; it could have been tracked into the house by firefighters and created false positives.

Hurst's ultimate conclusion was that a lack of evidence of accelerant indicated the fire could have been accidental and that it progressed to flashover and full room involvement. Holes in the floor were not the results of liquid accelerant pour patterns but of post-flashover burn. Flashover, falldown, and human error provided a better explanation for the fire than arson. In his view, given the evidence, it was less likely that defendant had poured accelerant throughout the house and started separate fires in different areas, as the task force concluded. According to Hurst, a fire investigator cannot declare a fire to be the act of arson unless and until he or she has specifically eliminated all reasonably possible natural and accidental causes. If an investigator cannot do so, then the cause of the fire must be declared to be undetermined.

On cross-examination, Hurst was unable to state affirmatively that the fire was accidental, yet he maintained that accident could not be ruled out. Ultimately Hurst stated that he did not know what caused the fire. He acknowledged that the phenomenon of flashover was known at least by 1992 to the "leading experts in the country," but said it was not widely known.

One of the "leading experts" referred to by Hurst, Dr. John David DeHaan, was called to testify at the motion hearing by the State. DeHaan had also reviewed the extensive file in the case. He discussed the areas of damage, noting that the most extensive damage centered around the middle of the house, primarily the rooms around the stairway, with much less damage to the master bedroom. Like Hurst, DeHaan testified that the evidence suggested flashover in much of the middle of the house.

DeHaan then discussed the interaction between flashover and pour patterns. He agreed with Hurst in certain respects. For example, if a floor covering is burned through in a localized area by a pour, then radiant heat produced as the room approaches flashover can accentuate that damage. But even if there was no accelerant poured, the intense combustion at floor level triggered during flashover can cause irregular puddles that mimic the presence of flammable liquid pour patterns. In essence, the effects of flashover can obscure the presence of pour patterns, or can create damage that looks like pour patterns, even if there were none.

DeHaan suggested that the only way to tell if accelerant was used is to detect it in some area protected from radiant heat and/or flashover combustion or, more reliably, in a room that has not flashed over, where vestiges of accelerant will probably be detectable if present at all. The evidence from defendant's house yielded two positive samples of accelerant in areas that had not flashed over. One was on carpet just inside the master bedroom door. Although a portion of the hallway outside the door had flashed over, the bedroom was undamaged. The sample contained an isoparaffinic petroleum product, consistent with charcoal starter fluid. DeHaan testified that, even if the charcoal fluid had been tracked in from the garage by firefighters, it would not have resulted in a positive lab test on the other side of the house; published experiments indicate such traces test negative after two or three steps.

DeHaan also testified that the isolated fire in the vanity drawer was not a likely result of falldown because the vanity itself was completely intact; there was no "communication" or "route" to that isolated fire. The only explanation was that a separate fire was started in the drawer.

Regarding the basement, DeHaan agreed with Hurst that the fire in the basement was small, that the room did not flashover, and that no accelerant was detected. There was no damage to the ceiling and no evidence of falldown. DeHaan identified particles of cloth and paper, suggesting that these may have been ignited to cause the fire in the basement.

DeHaan also testified about the fire dynamics of the defendant's house. The house was designed along a long hallway, with one large open area in the front and center where the stairway went up, perpendicular to the main floor hallway, to the second floor. Because fire naturally vents up and out, DeHaan testified, this open stairway would have acted as a chimney, and an accidental fire started at any point on the main floor would have flowed predictably, extending into the central entryway and up to the second floor. This fire, in contrast, was unnatural. There was damage at both ends of the main floor hallway. Given the home's size, layout, and the fact that it was occupied, DeHaan concluded the fire "had traveled to more places by the time [the occupants detected it and] public safety people arrived . . . than I could explain by any single source of fire traveling by normal means."

DeHaan also concluded that protection marks, extending from the door jamb, clearly demonstrated the door to the master bedroom was open during the fire, which was, again, inconsistent with defendant's version of events.

Although DeHaan also agreed with Hurst that fire investigators must reject all alternative hypotheses before forming an opinion and that, if this cannot be done, a fire's cause must be categorized as "undetermined," he ruled out accident and concluded that "this fire was deliberately ignited, multiple locations in the structure, based on all the evidence that was presented, and probably included the use of an ignitable liquid."

On cross-examination, DeHaan acknowledged that the use of ignitable fluid was a probable conclusion. He could not estimate how extensively it was used and agreed it was not used throughout the house. However, he opined that some amount of accelerant was certainly used, and that direct ignition accounted for other points of origin.

DeHaan also acknowledged on cross that the reasons for his arson conclusion differed from those of the task force. Under today's fire investigation standards, which include improved understanding of flashover, he admitted that the task force was incorrect to the extent it relied exclusively on the existence of pour patterns to conclude that an accelerant was used.

The State also called David H. Campbell, a firefighter and veteran cause-and-origin investigator, who disagreed with Hurst that flashover inevitably negates preexisting pour patterns. Campbell also disagreed with both experts in that he believed one could rely on a pattern to determine whether it was caused by an accelerant pour. Campbell testified he could determine, by observing a pour pattern and the scene as a whole, whether the pattern was caused by flashover, falldown, or accelerant; "[a] pour pattern has a total different look to it than a flashover pattern does."

Campbell also said that, even with his knowledge of flashover and falldown, he agreed with the task force observation that there were "ghost" patterns consistent with pouring of accelerant in the house entryway and up the stairs leading to the second floor. In addition, he testified that the patterns in the master bedroom revealed liquid burn, consistent with pouring of ignitable liquid that burned and ran back out to the hallway. While he could not rule out flashover to explain damage to the hallway, he testified that the evidence was more consistent with accelerant pour because there was not enough fuel in the form of furnishings or other combustible material or objects in the hallway to generate the heat required for flashover. Ultimately, Campbell opined that "the fire was intentionally set with the aid of combustible liquid and multiple fire sets."

The District Court's Decision

In its memorandum decision denying the instant motion, the district judge set out the standard codified in K.S.A. 22-3210(d), which gives a district court discretion to permit withdrawal of a plea after sentencing and set aside a conviction in order "[t]o correct manifest injustice." The judge agreed with defendant that a plea must have a "sufficient factual basis"; and that, in deciding that issue, the court "must be satisfied that all elements of the crime charged are present." The district court determined that, as all parties had earlier agreed, there was "substantial evidence" supporting the charges at the time of defendant's plea.

The district court adopted defendant's suggestion that new evidence may form the basis for permitting withdrawal of a plea. However, he found defendant's "new evidence" insufficient. "[D]efendant contends that because of advances in the science of fire investigation the State's evidence could no longer support a conclusion that the fire was the result of arson. After three days of mostly expert testimony, it is clear that defendant's evidence falls considerably short of proving that contention."

The judge further stated:

"There is substantial and compelling evidence to believe [defendant started the fire at her residence.] This evidence is not changed by a deeper understanding of the details or behavior of the fire once it was started. Defendant fails to show that the evidence as a whole would not support a finding of guilt if the case were to now go to trial or that the factual basis presented by the State now fails to support the plea entered in 1996. The factual basis . . . was, and remains, sound."

The district judge also concluded that defendant's plea was knowingly, voluntarily, and intelligently made. He had taken care to ensure she understood the implications of her decision to plead no contest, that she understood the substantial evidence against her, and that she considered the harsh punishment she could face.

Finally, the district judge also addressed defendant's argument that Marsh, 278 Kan. 520, required the court to allow withdrawal of her plea. He ruled that our later Marsh decision striking down the death penalty did not affect defendant's case. "Had this defendant not entered into a plea agreement, a penalty of death could have been sought by the State, determined by a jury, and imposed by the court." Thus defendant had received the benefit of her bargain: life in prison and concurrent sentences. Under all of these circumstances, there was no manifest injustice justifying withdrawal of defendant's plea.

On this appeal, defendant withdrew her claim based on Marsh, 278 Kan. 520, in light of the United States Supreme Court decision in Kansas v. Marsh, __ U.S. __, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006), which reversed our decision. Defendant also withdrew a cumulative error argument.

Analysis

As a preliminary matter, defendant cites, inter alia, Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), for the proposition that we should review the factual basis supporting her plea under a heightened reliability standard because she was facing the death penalty at the time of her plea. Defendant is correct that, in the context of a capital sentence, this court has required a heightened degree of reliability. See State v. Kleypas, 272 Kan. 894, 1036, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002); see also State v. Bethel, 275 Kan. at 457-58, 66 P.3d 840 (2003). However, where no sentence of death was imposed, this court is not required to review a case under this more stringent standard. See Bethel, 275 Kan. at 457-58 ("[b]ecause of the State's agreement not to pursue the death penalty, [defendant] is not directly affected by it and cannot raise issues" concerning its constitutionality). On this review, defendant is entitled to no protections beyond those set forth in K.S.A. 22-3210 and interpreting case law, and those required by due process.

As this court has often stated, motions to withdraw plea are governed by K.S.A. 22-3210(d), which reads:

"A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea."

Under this section, the decision to deny a motion to withdraw a plea, even after sentencing, lies within the discretion of the district court. That decision will not be disturbed on appeal absent a showing of abuse of discretion, and the defendant bears the burden of establishing it. Judicial discretion will vary depending upon the character of the question presented for determination. Generally a district judge's decision is protected if reasonable persons could differ about the propriety of the decision, as long as the decision was made within and takes into account any applicable legal standards. An abuse of discretion may be found if a district judge's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. State v. Shopteese, 283 Kan. __, Syl. ¶ 2, __ P.3d __ (2007); State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006).

In evaluating a post-sentencing motion to withdraw a plea, the district court should consider: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. See State v. Bey, 270 Kan. 544, 545, 17 P.3d 322 (2001).

Defendant's legal position relies on two arguments that merit discussion. First, she argues that new evidence can require post-sentencing withdrawal of a plea. Second, she argues that she need only demonstrate the current existence of reasonable doubt in order to undermine the past factual basis for her plea.

With regard to her first argument that new evidence can require post-sentencing withdrawal of a plea, we note first that new evidence is not among the explicit considerations in K.S.A. 22-3210(d), even as supplemented by case law and due process requirements. However, we have discussed the withdrawal of a guilty plea based on newly discovered evidence.

In State v. Walton, 256 Kan. 484, 489, 885 P.2d 1255 (1994), Robert S. Walton alleged that evidence discovered after the entry of his plea exonerated him, thus providing "good cause" under K.S.A. 22-3210(d) for granting his presentencing motion to withdraw. The district court conducted a full hearing, considered all the evidence, and concluded that Walton's plea was informed and voluntary. Furthermore, because the new evidence did not exonerate Walton, there was no basis for withdrawing the plea.

More recently, in Bey, 270 Kan. at 558-59, the defendant sought to withdraw his plea, arguing new evidence allowed him to do so. He pointed to statements allegedly made by the jail mate of a codefendant, which implicated the codefendant rather than the defendant in the victim's shooting death. The district court considered the statements and determined that they did little to exonerate the defendant. On appeal, the defendant urged this court to draw an analogy between his motion and one for new trial. We did not clearly adopt his invitation on the way to affirming, Bey, 270 Kan. at 557-59, but we acknowledged that there must be a factual basis for a plea and that a district court determining whether such a factual basis exists must establish that all elements of the charged crime are present. Bey, 270 Kan. at 546 (citing State v. Shaw, 259 Kan. 3, Syl. ¶ 1, 910 P.2d 809 [1996]).

It is obvious that, if new evidence disproves an element of a crime, then the factual basis for a guilty or nolo contendere plea to the charge of committing that crime is undermined. It is a defendant's burden to prove that the factual basis of a plea is so undercut by new evidence that the prosecution could not have proved its case beyond a reasonable doubt. In such a situation, the court may permit withdrawal of the plea and may set aside the resulting conviction, because doing so corrects manifest injustice under K.S.A. 22-3210(d) and comports with due process.

Defendant's further argument that she need only demonstrate the current existence of reasonable doubt in order to undermine the past factual basis for her plea is simply without merit. Even if we assume for the moment that the evidence adduced at the hearing on her motion to withdraw plea was sufficient to establish the current existence of reasonable doubt, at the time the district judge accepted defendant's plea, his charge was to determine the existence of a factual basis for it at that time and in that place. He was not required to foretell the future and anticipate its effect on the fire science underlying the task force conclusion.

Defendant's argument reflects a basic misunderstanding of the plea process. Entry of a plea of guilty or nolo contendere necessarily implies acknowledgment by all concerned–the defendant, the State, and the court–that a jury could go either way and that a risk-benefit analysis has taken place on both sides. The prosecution and the defense have something to gain and something to lose in any plea bargain. They make their peace with the trade-off in exchange for reducing the uncertainty of their situation. Instead of leaving it up to a jury to acquit or convict, to recognize or fail to see any reasonable doubt that may exist, they cut a deal. The requirement that a judge confirm the factual basis of a plea is not a mandate that he or she sit in place of a jury and evaluate reasonable doubt as a matter of law. It merely requires the judge to ensure that the State has enough proof to support each element of the crime. It is not necessary that the proof be particularly persuasive, even at that time and in that place, much less that it will stand the test of time and advancing human understanding. It need only be sufficient for a reasonable factfinder to arrive at a guilty verdict.

On the facts of this case, we conclude that the district court did not abuse its discretion in denying defendant's motion to withdraw her plea. The district court appropriately considered whether defendant was represented by competent counsel; whether she was misled, coerced, mistreated, or unfairly taken advantage of; and whether her plea was fairly and understandingly made. See Bey, 270 Kan. at 545. Relevant to these standards, we observe in particular that defendant was represented by three very experienced attorneys; she was not misled about the quality of the State's evidence against her; and the mere existence of the death penalty as a potential penalty for the offenses with which she was charged did not amount to coercion. Further, her articulate colloquy at the plea hearing demonstrated that her plea was fairly and understandingly made.

Most important, however, in view of defendant's specific argument, we hold that defendant has not brought forward new evidence. At best, she has developed a competing interpretation of old evidence. Hurst's testimony about advances in fire science and their potential effect on the reasoning and conclusion of the task force did not disprove an element of any of the crimes on which defendant entered her plea. DeHaan's and Campbell's testimony demonstrated that arson was still very much alive as an explanation for the fire. It was not ruled out; it was merely challenged.

In addition, we are compelled to note that defendant's focus on advances in fire science ignores the inescapable. The task force conclusion was far from the only evidence supporting the aggravated arson and other charges. The State's proffer included an abundance of other evidence pointing to the defendant's guilt. Its largely circumstantial nature would not have detracted from its value in support of any ultimate conviction. See State v. Dixon, 279 Kan. 563, 621, 112 P.3d 883 (2005); State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004).

Given all of the above, we hold that defendant did not meet her burden to demonstrate that the factual basis for her plea is so undercut by new evidence that the prosecution could not have proved its case beyond a reasonable doubt. There was no manifest injustice to correct, and the district judge did not abuse his discretion in so ruling.

Affirmed.

 

 

 
 
 
 
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