Tina Hunt on firefighter liability

Wildland firefighters, and perhaps structural firefighters, will be living with the specter of the Thirtymile Fire prosecution for a long time.

This was the case, as you probably know, where a wildland firefighter, Ellreese Daniels, was charged with seven felony counts after his crew was overrun on a fire and four of them were killed. Eventually Ellreese pleaded guilty to some misdemeanor counts and was sentenced to 90 days of jail time in a work-release facility and 3 years of probation by judge Fred Van Sickle of the U. S. District Court in Spokane, Washington.

There are many problems with the concept of sending firefighters to prison for mistakes made on the fire ground--we have covered them extensively on this blog, for example HERE and HERE. But we can't afford to turn our head and let this threat fester, and then erupt later when the next firefighter is threatened with prison. We need to fix it so that it can't happen again.

The following was written yesterday, December 2, by Tina Hunt, the attorney who represented Ellreese. It is reprinted here with her permission.

"I feel that firefighters should still remain concerned that criminal charges could be brought based upon statements they make during investigations of burnover and fatality investigations. Felony false statement charges can be very difficult to win, and that was certainly my concern in the Thirty Mile case.

While there were others who gave statements which may have been construed as false, only Ellreese was charged, and I felt as if they charged him only because they could hold the hammer of the manslaughter charges over him.

The prosecution in the 30 Mile case was ridiculous; I will always feel that way, and I would NEVER EVER EVER allow a firefighter to make statements during any investigation if I represented them.

Because there is no check on the power of the government to bring these kinds of charges, I believe that the agencies should get together, along with the AG (Attorney General), to ensure that the goals of a burnover/fatality investigation are not chilled by the threat of prosecution."

The sad truth is, if a firefighter is involved in a serious accident, they need to Lawyer Up, and keep their mouths shut.

UPDATE @ 1:53 MT Dec. 3:

Tina has some additional news about Ellreese. The judge modified his sentence from 90 days in a work release center to 90 days of house arrest so that he can maintain his employment. He is allowed to leave the house for work and other pre-approved activities.

John N. Maclean on the Thirtymile Fire sentencing

As many wildland firefighters know, John N. Maclean is the author of three books about wildland fire.

• Fire on the Mountain: The True Story of the South Canyon Fire
• Fire and Ashes: On the Front Lines of American Wildfire
  
• The Thirtymile Fire: A Chronicle of Bravery and Betrayal

He is a very well-respected author who is known for his thorough research, uncovering facts and assembling them into prose in such a way that makes his books required reading for firefighters.

Having known John for a while, we contacted him after Ellreese Daniels was sentenced for Daniels' actions on the Thirtymile fire. We asked him for his reaction to the sentence and discovered that he was writing an article on the subject for Writers on the Range, a service of High Country News. We received permission from John and High Country News to publish the article. Wildfire Today thanks them both for their generosity. The article is included in its entirety here.

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Mistakes on the fire lines can now lead to prosecution

By John N. Maclean

 

Behind daily headlines about bigger and more costly wildland fires, the firefighting community has been sweating out the issue of criminal liability for mistakes made on the fire line.

 

It’s not just a firefighter issue: The public has a stake in how well firefighters protect lives, property and forest values. Firefighters who know they could be sent to jail for what's later determined to be a mistake may be less aggressive in attacking a fire, and that could prove more dangerous than hitting the fire hard from the outset.      

                  

The immediate trigger for concern has been the prosecution of Ellreese Daniels, a Forest Service incident commander. He worked the Thirtymile Fire that took the lives of four young firefighters in a narrow canyon in north-central Washington on July 10, 2001, seven long years ago.

 

Daniels was one of 11 fire managers the Forest Service set out to discipline for a series of blunders that led to the deaths. Daniels and two others were to be fired, but virtually none of the disciplinary actions held up on appeal, and no one was fired. Daniels, who had been given another fire assignment until survivors of the Thirtymile blaze complained, was relegated to a warehouse job.

 

Five years after the fire, Daniels was the only fire supervisor indicted--in federal District court in Spokane on 11 felony charges, including four counts of involuntary manslaughter. It was the first-ever criminal prosecution of an incident commander for negligence on the fire line, absent malice.

 

Daniels, who worked for the Forest Service for 24 years before the fire, was one of the few agency blacks willing to put up with the isolation of small-town life in the rural Northwest. The truth is that Daniels was pushed into a fire supervisory role, and he was not equipped to handle a big fire that put many lives at risk. U.S. Attorney James McDevitt, though, denied any racial motivation to the prosecution; he said he did not even know Daniels was black until after he had indicted him. 

Every responsible firefighter believes in accountability on the fire line; that is how safety lessons are learned. But should anyone be indicted when wildfire becomes unexpectedly violent? Every experienced firefighter knows that fire is volatile and dangerous, sometimes fatally so. Being jailed for having a bad day at work is an intimidating prospect.

 

The immediate result? Fewer firefighters are willing to become incident commanders. The International Association of Wildland Fire tested reactions in a survey of about 3,000 members, nearly all seasoned firefighters, and found that more than a third, or 36 percent, had decided to become “less available for fire assignments.” Another 23 percent said they would refuse the job of incident commander.

 

U.S. Attorney McDevitt, himself a one-time firefighter, defended the prosecution on grounds that Daniels’s negligence amounted to reckless disregard for life. Daniels recommitted his crew to the fire in late afternoon as it blew up, and after they’d backed off to a place of safety because of dangerous conditions. Then, after he and 13 others plus two civilians were cut off by spreading flames, he failed to take adequate steps to prepare for the fire’s inevitable passage. McDevitt also charged that Daniels lied to investigators afterward to shift the blame onto the fallen firefighters. 

 

“Something had to be done,” the prosecutor said.

 

Last April, under threat of a chancy six-week trial, the 11 felony charges were dropped. Instead, Daniels agreed to plead guilty to two misdemeanor charges: that he had lied about ordering the doomed firefighters to move to a safer place, and about his assertion that they had disregarded the order.

 

On Aug. 20, Judge Fred Van Sickle sentenced Daniels to three years of probation and 90 days of work release. The judge also ordered him to submit to counseling for alcohol and substance abuse, and never to fight fire again.

 

Daniels’s negligence was so extreme, McDevitt said afterward, that it makes a similar prosecution “highly unlikely.” However, Daniels’s public defender, Tina Hunt, correctly noted that the case sets a precedent: No one can predict what another U.S. attorney might do.

 

The Daniels prosecution ended without clear victory or defeat for either side. Its effects, though, are bound to linger in the minds of firefighters, the women and men who must make instant decisions under extreme conditions that affect the lives of everyone in fire country. 

-o-

    

John N. Maclean is a contributor to Writers on the Range, a service of High Country News. He is the author of “The Thirtymile Fire: A Chronicle of Bravery and Betrayal,” and divides his time between the West and Washington, DC.

Ellreese Daniels' sentencing - a perspective from inside the courtroom

We received this from Dick Mangan. It is reprinted with his permission.

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Friends - my day was spent in the Federal Courthouse in Spokane, attending the Sentencing Hearing for Ellreese Daniels.

As most of you are well aware, he was originally charged in December 2006 with 11 felonies; in May 2008, just a few days before the trial, the US Attorney offered a plea agreement of two (2) misdemeanors of making a false statement in an Administrative hearing. Rather than risk a jury trial on 11 felonies, Ellreese agreed.

The Judge sentenced Ellreese to 90 days in a "Work-Release Facility" where he'll work a job during normal hours and then return to a lock-down center at night. He also gets 3 years probation, and will not be active again in wildfire activities on the line.

Not great by a long shot, but way better than taking a risk that a jury "of his peers" in Spokane would find him innocent of all 11 felony charges. Ellreese keeps his USFS job and future retirement, is NOT a convicted felon, and most importantly, can get on with his life after more than 7 tortured years!

Some Observations:

1. The US Attorney Tom Hopkins allowed family members of the deceased to offer comments: Karen Fitzpatrick's mother read from a 4-5 page prepared statement, critical of Ellreese and the USFS; Devin Weaver's father offered 15-20 minutes of emotionally charged off-the-cuff comments, again critical of Ellreese and the USFS; Jessica Johnson's cousin talked about them growing up together like sisters, and asked the Judge to give Ellreese the maximum sentence possible; and then Tom Craven's father talked: he said all of his 6 children were USFS firefighters: several have been in California this summer; he respects the USFS and won't talk bad about the outfit; and said that "Ellreese was not in control of the fire or the wind" and said that Ellreese should "not spend even 1 day in jail for what happened".

2. Hopkins kept trying to bring all of the manslaughter charges back into the play, even though they had been dropped with his approval;my notes as he talked said "boring beyond belief!"

3. Federal Defender Tina Hunt did an excellent job trying to keep the issue focused;

4. The Judge seemed concerned about Ellreese's plea of guilty to making false statements during an investigation, and wanted to send a message that the truth is critical in investigations.

5. The Judge said specifically: "the cause of the deaths was NOT yours"'

6. He also complimented Ellreese for overcoming a less-than-ideal youth, saying he went to Job Corps, got on with the USFS, and "you were there because you worked hard."

7. Tina talked about the implications of this case to firefighters across the US and around the world.

8. US Attorney Hopkins accused Ellreese of not ordering shelters deployed earlier because " it's a sign of weakness" and that he "gambled with his crew" to be sure he had a chance for future fire OT.

9. The USFS was there in uniform supporting Ellreese: Forest Supervisor Becki Heath, Forest FMO Bobbi Scopa, and Deputy Regional Forester Cal Joyner; several Wenatchee folks as well, some on government time and others on their own; a fair mix of retirees as well, all there to support Ellreese and "the cause"

Some personal comments:

1. This should have never taken place: a well-intended US Senator and a Congressman bought off on a flawed bill-of-goods from a constituent, and here we are 6 years after PL 107-203;

2. After 40+ years in wildland fire: "there but the grace of God go I"

3. Ellreese will survive this, somewhat battered but alive and well in the end, with a USFS job and someday a retirement package;

4. In my not-always humble, non-lawyerly Forester opinion, the US Attorney in Spokane Jim McDevitt and his Assistant Tom Hopkins are poster children of what you get when Alberto Gonzales and Monica Goodling apply their "special criteria" to hiring folks for the US Justice Department;

5. Lastly, it is my view that after today, wildland firefighting will never be the same! If any mis-fortune befalls you on the fireline, my only advice is to "Lawyer UP!!"

Ellreese may still need our support, both moral and financial, in the coming months; stay tuned for further details!

Thanks for your ongoing support to date, and stay Safe on the fireline!

Dick Mangan
Blackbull Wildfire Services

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From the Associated Press:

U.S. District Judge Fred Van Sickle emphasized during the sentencing that Daniels was being punished for the statements, not the deaths.

"I don't think the cause of these sad, tragic deaths was yours," he said.

But prosecutor Tom Hopkins, who sought four months in prison and a $1,000 fine, continued to blame Daniels — as did many relatives of those who died.

"Personally, I have a hard time calling that true justice," said Kathie FitzPatrick, mother of 18-year-old Karen FitzPatrick. "I will never have any grandchildren."

FitzPatrick said she wore her daughter's charred wristwatch and a pair of her daughter's shoes into court.

"If Ellreese Daniels had not been on that fire line, my son would have probably lived," said Ken Weaver, the father of 21-year-old Devin Weaver.

Daniels, of Lake Wenatchee, did not speak. His public defender, Tina Hunt, said her client was a scapegoat for decisions made by numerous Forest Service supervisors and employees, and that the deaths were the result of a dangerous wildfire that ran amok.

"What Mr. Daniels did up there that day was not the sole cause of those firefighter deaths," Hunt said. "The person who keeps getting blamed for everything is Ellreese Daniels."

The other firefighters killed were Tom Craven, 30, and Jessica Johnson, 19. All four were from central Washington.

Craven's father, Will, said Daniels should not serve any jail time.

"Wind and fire killed the four people on the rocks," said Craven, who has had six children work as firefighters. "Fighting fires is dangerous."

Daniels continues to work for the Forest Service, but no longer fights fires.

In addition to the three months of work release, Daniels was sentenced to three years of probation. The judge said he also must complete mental health and alcohol abuse evaluations and any treatment that is needed. He was ordered to abstain from alcohol during the probation period and may not work as a firefighter.

Ellreese Daniels sentenced to 90 days work-release

In a court proceeding today Ellresse Daniels was sentenced to 90 days in a work-release facility and 3 years of probation by judge Fred Van Sickle of the U. S. District Court in Spokane, Washington. He will have to spend his nights locked up for the next 90 days, but can leave to go to work during the day.

Ellreese Daniels, his attorney Tina Hunt, and investigator Thomas Krzyzanek arriving at the sentencing today, August 20.

Ellreese had been initially charged with four counts of manslaughter after members of his crew, Tom Craven, Karen FitzPatrick, Jessica Johnson and Devin Weaver were entrapped and killed on the Thirtymile fire on the Okanogan National Forest in Washington state in 2001. The manslaughter charges were reduced to two counts of making false statements to which Ellreese pleaded guilty.

He faced a maximum of six months in prison for the misdemeanor false statement charges after the plea bargain. The Assistant U.S. Attorney, Tom Hopkins, asked for 4 months and Ellreese's attorney, Tina Hunt, wanted probation.

The judge said he did not believe that Ellreese was responsible for the deaths of the firefighters, but he was troubled by the false statements.

Members of all four of the deceased firefighters spoke at the proceeding. Karen Fitzpatrick's mother, Kathie, told the judge Ellreese should serve 2 years in prison. The father of Tom Craven, Will Craven, said the job of firefighting is dangerous and Daniels should not serve any time.

Only time will tell if this sentence will make it more or less likely for other firefighters to face similar criminal charges when the unthinkable happens..... as it inevitably will.

Many firefighters felt that charging a firefighter with crimes for unfortunate injuries or deaths while on the job would open a Pandora's box of firefighters having to constantly look over their shoulder and second guess every decision or lack of a decision that they may make. Many are wondering if they can afford to take on the addition risk and liability of ruining their families lives if they are accused of making a mistake on a fire.

Firefighters are being advised behind the scenes to "lawyer up" immediately after a major accident. They are collecting information how they can avoid saying anything to investigators, afraid that they may wind up in jail. Learning lessons from accidents may become difficult or impossible.

A survey of 3,362 firefighters conducted last year by the International Association of Wildland Fire showed that 36% of the full-time wildland firefighters surveyed would make themselves less available to be assigned to wildland fires as a direct result of these criminal charges being filed.

I was not on the Thirtymile Fire, so all I know is what I read in the report and from talking with some people very close to the situation.

Ellreese may have made some mistakes on the fire... a fire that exhibited extreme fire behavior. Or maybe days or weeks later he had difficulty remembering every detail of those adrenalin-filled minutes when everything went to hell on the Thirtymile fire. When he learned that four members of his crew were killed by the fire.

He and his crew had been on their shift for 24-36 hours with little or no sleep. He met all of the training and experience qualifications. I have to assume that he did the best that he possibly could with all the tools he had at his disposal. He only wanted the best for his crew.

Any firefighter in a supervisory or leadership capacity, wildland or structural, can make mistakes. If they are subject to felony charges, decades in prison, losing their job, their retirement, and their livelihood, and ruining their lives and the lives of their families, many are not going to accept this additional risk.

Thanks to Dick for the late-breaking news.

Prosecutor: Ellreese Daniels lied to save his career

Ellreese Daniels is going to be sentenced Wednesday at 10 a.m. in the U.S. District Court in Spokane.

From the Wenatchee World:

By K.C. Mehaffey
World staff writer
SPOKANE — After dropping manslaughter charges against the crew boss of four firefighters who died in the Thirtymile Fire near Winthrop, a federal prosecutor has assigned a motive to why Ellreese Daniels lied to investigators after the fatal 2001 wildfire.

Daniels, 47, of Lake Wenatchee, wanted to save his firefighting career, according to Assistant U.S. Attorney Tom Hopkins.

A former co-worker, however, says Daniels is not at all calculating, and would not have been thinking about his career when investigators interviewed him just after the fire. His defense attorney, Tina Hunt, filed a response Friday to Hopkins' charge, saying Daniels believed he was telling the truth when investigators questioned him.

Daniels is the first Forest Service employee to be charged for the deaths of firefighters who died under his command, but the involuntary manslaughter charges were dropped in April when he pleaded guilty to two counts of making false statements to investigators. He will be sentenced Wednesday in U.S. District Court in Spokane.

Killed were Devin Weaver, 21; Jessica Johnson, 19; and Karen FitzPatrick, 18, all from Yakima; and Tom Craven, 30, from Ellensburg.

The four were trapped on the Chewuch Road north of Winthrop with 10 other firefighters and two campers when fire swept over them on July 10, 2001. All deployed fire shelters, but the four firefighters were up on a rock slope where they could not properly deploy their shelters.

Daniels pleaded guilty to lying about two things: First, that he told the firefighters who died at least three times to come down from the rocks because it was not a good place to be. And second, that neither of two fire engines reported to him when they arrived at the fire.

Hunt wrote that Daniels has already suffered the consequences for his actions, and should serve no jail time. He is no longer qualified to fight fires, was removed from the fire division with the Forest Service, and was reassigned to the supply cache, her response stated.

Hopkins said he'll seek a four-month sentence in the custody of the federal Department of Corrections with one year of probation.

He said he believes Daniels should serve in the upper half of the standard range for the misdemeanor charge, which is zero to six months for someone with a low criminal history, such as Daniels. One prior conviction, for assault, counts against Daniels under sentencing guidelines, according to documents provided by the prosecution.

Hopkins said Daniels appeared to lie about all the key turning points that would have shown his poor decisions leading to the firefighters' deaths.

"Mr. Daniels lied to investigators for the purpose of shifting responsibility for the deaths of the four firefighters to others, to include the victims, in an effort to save his career," his court document states. It later adds that deployment of fire shelters triggers an automatic investigation, and, "In a profession where success, courage, and image are important, Mr. Daniels wanted to avoid an unnecessary deployment that could hurt his standing among his peers and reduce his prospects for choice assignments and promotion."

He also wrote that Daniels has only made excuses for his poor performance as an incident commander, but has not recognized that his false information led investigators to false conclusions and wasted government resources.

The false statements exposed an engine foreman to potential disciplinary action, and caused families of the firefighters unnecessary anxiety and anguish, Hopkins wrote.

Heather Murphy, who used to work with Daniels at the Wenatchee River Ranger District, said it's doubtful that Daniels was thinking about his career when he was trying to assess whether the fire would sweep over his crew.

"It's ridiculous. With all the years of service, it's not like he was a ladder-climbing person at all," she said. Murphy said it makes no sense for anyone assessing a fire to think about what their peers would think if they had to deploy fire shelters.

"I wasn't there, so it's really hard for me to respond, but I've been on enough fires — around 40 or 50 — to know that you often don't think you're going to be overtaken by fire," she said.

Attorney Tina Hunt, in her response to the prosecutor's court filing, wrote that Daniels simply forgot the engine supervisor had checked in with him during the fire, and had to be taken back to the site to recall it. She also wrote that while Daniels may not have ordered firefighters to come down from the rocks, others recalled him stating that the road was the place to be, and that he believed he communicated his desire for them to come down from the rocks.

She also wrote that Daniels continues to have nightmares about the incident, and likely suffers from post-traumatic stress disorder.

"Mr. Daniels knows that his actions, in part, led to these tragedies. However, he has also had to deal with the fact that NO OTHER PERSON has been forced to be held criminally responsible other than himself," her response states.

Wildfire news, August 8

More than 150 fire engines escorted the casket of Chief Dan Packer to his memorial service yesterday in Federal Way, Washington. The Chief of the East Pierce County Fire and Rescue Department was killed July 26 on a fire in northern California. A slide show of photos from the service is HERE. A similar service was held Monday for Andy Palmer who was struck by a falling tree July 25 on the Shasta-Trinity National Forest in California.

Judge Van Sickle has changed the time and date of Ellreese Daniels sentencing from Monday, the 18th, to Wednesday August 20 at 10 a.m. in Spokane. Daniels plead guilty to two misdemeanor charges of making false statements to investigators for actions on the Thirtymile fire.

The Columbia River Road fire, a new fire in Washington state on the Colville Indian Reservation near Nespelem, has burned 5,000 acres and is threatening 40 structures. More lightning and a red flag warning are predicted for Friday in eastern Washington, with possible showers on Saturday.

Lightning yesterday in northeastern Oregon started approximately 50 fires. Most of them were put out at less than an acre. A few of them burned 35-100 acres before they were contained. More lightning is expected on Friday.

A spokesman for the Lolo National Forest in Montana told the Missoulian that they received only about 50 lightning strikes in the Missoula area, less than expected:

"And most of them were sheet lightning, which don’t reach the ground.”

The spokesman should brush up on his lightning facts. "Sheet" or "heat" lightning is simply lightning at a distance from the person viewing it, and it is behind clouds which lights up the clouds, some say like a sheet. But lightning at a distance behind clouds can still strike the ground and start fires.

And speaking of lightning, HERE is a link to an impressive slow-motion video of a lightning strike.

CalFire will not press charges against the 28-year old target shooter who started the Telegraph fire near Chico, California. The fire burned 34,091 acres and destroyed 30 primary structures. It was contained on August 6 and cost over $37 million to suppress.

And, we request that the fire blogger who has been copying sections of our posts and pasting them verbatim into his blog at least give us a credit when doing so.

Video about Ellreese Daniels plea agreement

I just discovered this 2 minute video about Ellreese Daniels' April 29, 2008 plea agreement. It is a news segment produced by KXLY television in Spokane, Washington. It has some B-roll footage of the Thirtymile fire scene that was new to me and also gives the local perspective of the case.

Ellreese Daniels' attorney requests support

Ellreese Daniels was the Crew Boss and Type 3 Incident Commander on the Thirtymile Fire near Winthrop, Washington in 2001 on which four members of his crew were overrun by fire and died. On January 30, 2007 the U.S. Attorney in Spokane, Washington charged him with eleven felony charges-- four counts of involuntary manslaughter and seven counts of making false statements, which could have led to 56 years in prison.

On April 29 the U.S. Attorney reduced the eleven felony charges down to two misdemeanor charges of making false statements to investigators, to which Ellreese pled guilty.

Sentencing will occur August 18 and could result in probation or up to six months in jail.

Wildfire Today has posted about this case eight times.

Ellreese's attorney, Tina Hunt, is requesting that:

"...if anyone would like to write a letter of support for Ellreese or to write a letter letting the court know how this case has affected them, I would be more than happy to collect those. I would rather they come directly to me so that I may make certain that the Court receives them."

Her address is:

Christina Hunt
Federal Defenders of Eastern WA and ID
10 N. Post St., Ste. 700
Spokane, WA 99201

If you have been following this case on Wildfire Today, you know how I stand. I was not on the Thirtymile Fire, so all I know is what I read in the report and from talking with some people very close to the situation.

Ellreese may have made some mistakes on the fire... a fire that exhibited extreme fire behavior. He and his crew had been on their shift for 24-36 hours with little or no sleep. He met all of the training and experience qualifications. I have to assume that he did the best that he possibly could with all the tools he had at his disposal. He only wanted the best for his crew.

Any firefighter in a supervisory or leadership capacity, wildland or structural, can make mistakes. If they are subject to felony charges, decades in prison, losing their job, their retirement, and their livelihood, and ruining their lives and the lives of their families, many are not going to accept this additional risk.

Structural firefighters should be very concerned about this. Now that Ellreese has pled guilty to two misdemeanors, has that already set a precedent to a certain extent? (Any attorneys out there?) And, if he receives any kind of jail or prison sentence, will all firefighters then be subject to this procedure which will no doubt spread from wildland fire out into the larger structural fire community? Some say the U.S. Attorney that brought the 11 felony charges forward is seeking a better, higher-paying position. There are lots of District Attorneys out there that may also be looking to get their names in the paper or run for higher office.

The job has plenty of risks we can do little about. This is a risk we CAN do something about through legislation and other means.

Firefighters are now being advised by their peers to "lawyer up" if they are involved in a serious on the job accident. They will be very hesitant to say ANYTHING about it if they feel their lives could be ruined. Lessons will not be learned from mistakes. More people may be exposed to hazardous situations that could be prevented if we could talk about previous close calls or accidents.

Here is what you need to do. Take 15 minutes and invest it in your future and the safety of your fellow firefighters. Write a letter as Tina suggested, explaining how you feel about this, and how it affects you...and your family.

Yakima Herald-Republic's editorial about Thirtymile plea bargain

The Yakima Herald-Republic has always taken the position that Ellreese Daniels and others should be punished severely for the errors in judgment that led to the deaths of the four firefighters on the Thirtymile fire in 2001. They are not pleased with the recent plea bargain in the case, according to their editorial published yesterday:

"In a New Year's Eve editorial on the last day of 2006, we were willing to concede at the time that "four manslaughter charges brought against a U.S. Forest Service crew boss nearly 51/2 years after the deadly Thirtymile Fire in Okanogan County could finally be proof that justice delayed is not necessarily justice denied."

That hope has been dashed now that a plea-bargaining deal has led to fire crew chief Ellreese Daniels pleading guilty in U.S. District Court in Spokane Tuesday to two misdemeanor charges of making false statements to investigators.

The magnitude of the reduction in charges is staggering: In exchange, the government dropped four felony counts of involuntary manslaughter and seven felony counts of making false statements.

Sentencing is set for July 23 August 18.

"Like all plea agreements, there was a recognition of the evidence and the law as it exists," Assistant U.S. Attorney Tom Rice said in an Associated Press report out of Spokane. "We feel this is an appropriate disposition of the case."

Really? Will there ever be "appropriate disposition" of a case in which so many nagging doubts and unanswered questions remain? Four people died and the only person charged in the incident gets a plea-bargaining slap on the wrist and won't have to face trial -- during which a more complete story of what happened up to and during that fateful day could unfold during testimony.

Frankly, we've been less than impressed from the start with the federal government's handling, at all levels, of the Thirtymile incident.

We also take note of the fact that Daniels was the only one to face criminal charges out of the fire near Winthrop that killed four Central Washington firefighters on July 10, 2001: Tom Craven of Ellensburg, and Karen FitzPatrick, Jessica Johnson and Devin Weaver, all from Yakima.

We remain convinced that Daniels must answer in part for the tragedy because he was directly responsible for the safety of his crew. But we also maintain that the blame for the Thirtymile debacle involves much more than just what happened on the fire line that day. Blame must also extend further up the chain of command and include a culture of stonewalling and cover-up so prevalent in the U.S. Forest Service at the time.

In addition, a September 2001 investigation by this newspaper revealed that the Forest Service broke more than a dozen of its own safety rules. Federal investigators came to an even more damning conclusion: The Forest Service had 28 rules in place to keep crews safe. At Thirtymile, 20 of them were broken, according to the U.S. Occupational Safety and Health Administration.

The negligence, according to the original charges, included Daniels failing to prepare the crew for the possibility of being overrun by flames.

The fact he was singled out prompts memories of the scandal at Abu Ghraib prison in Iraq when Iraqi prisoners were mistreated by United States military personnel. Of 10 people convicted out of that debacle, none ranked higher than staff sergeant. That in a system noted for its chain of command that demands the following of orders.

Reforms within the agency were supposed to ensure a tragedy such as Thirtymile never happened again. Yet, seven firefighters have been fatally trapped since by forest fires in Idaho and California.

That's not to simply say the lessons of Thirtymile have not been heeded. After all, we're talking about a very dangerous line of work, one in which every possible step must be taken to ensure the safety of firefighters on the line.

But we also don't totally agree with the fears of many in the firefighting community that the unprecedented prosecution of Daniels might send a chilling message into the ranks of his colleagues across the nation -- that they could face felony charges if something similar happened on their watches.

Anyone responsible for neglect of duty that leads to tragic consequences should face such charges. In our system of justice, whether such charges are justified is determined in a trial with all the pertinent facts on display, not with plea bargaining.

The plea deal may have technically closed the books on the prosecutorial phase of Thirtymile. But the nagging question remains: Will justice ever be completely, and adequately, served in this case?"

US Attorney issues press release about Ellreese Daniels' plea

The press release about the events on the Thirtymile fire can be found HERE (pdf document).

Ellreese Daniels pleads guilty to two misdemeanors

At the federal district court today in Spokane, Washington, Ellreese Daniels plead guilty to two misdemeanor charges of making false statements to investigators. The federal prosecutors dropped the four federal felony charges of involuntary manslaughter related to the deaths of the four firefighters on the Thirtymile fire near Winthrop, Washington in 2001.

In addition to the four involuntary manslaughter charges, Daniels had been charged with seven counts of making false statements to investigators, a federal misdemeanor.

Daniels could have faced as much as six years in prison for each of the four manslaughter charges. Now he faces up to a year in prison and a $100,000 fine for each of the two remaining misdemeanors, although the standard range is much less.

Sentencing was set for July 23 August 18. Yesterday in an email, Daniels' attorney, Tina Hunt, said she expected there to be a "contested sentencing hearing".

I have mixed feelings about the plea agreement. The procedure today means that Daniels will not have to serve lengthy jail time for the felony charges, he will not have a felony conviction on his record, he probably will not lose his job with the US Forest Service, and he will not lose his retirement.

His attorney said that the defense had a strong case. This is also indicated by the fact that the federal prosecutors dropped all of the felony charges and five of the seven misdemeanor charges in return for the guilty pleas on the two misdemeanors.

If I had been in Daniels' shoes, I may have done the same thing. I can't imagine what it must have felt like to be facing those four felony charges, serious prison time, and the loss of the job and his retirement.

Looking at the larger picture, and from a selfish perspective, this is a mixed blessing for the fire community. It would have been better for firefighters if all of the charges had been dropped, or if they had been thrown out or defeated in court.

But perhaps the next over-zealous prosecutor seeking to to beef up their resume will be less inclined to throw around ridiculous felony charges when someone makes an honest mistake on a fire.

The International Association of Wildland Fire documented with their survey the fact that many firefighters were very concerned about the harmful effects these charges would have on the fire community. In the survey, 36% said they would make themselves less available for fire assignments because of the charges that were filed against Daniels.

Making an honest mistake on a fire should not have the potential to ruin your life and the life of your family.

Photo of Ellreese Daniels courtesy of the Spokesman-Review

Ellreese Daniels' plea hearing April 29

An email message from Tina Hunt, Ellreese's attorney dated today, April 28:

Hi All,

As some of you know, I believe we have finally reached a compromise with the government in this case. In exchange for dismissing all 11 felony counts, the government will agree to offer a plea to 2 misdemeanor counts of making a false statement in an official writing. I will be recommending to the court that Ellreese should receive no time, the government may recommend a sentence of jail time. I strongly feel that this is a case that does not merit a jail sentence, so I am comfortable with the plea to the misdemeanors.

As you all know, this is a case which I have felt very passionately about. I am more convinced than ever of Ellreese's innocence on ALL of the counts, however, there remains a risk that if we proceed to trial, he could be found guilty of at least one felony. There comes a time and place to put some closure on this matter, and Ellreese is comfortable with this resolution. I hope that the witnesses and families may also find some peace now.

I anticipate that we will still have a contested sentencing hearing in late summer.

We currently have a tentative change of plea set for tomorrow (April 29) at 11:00 a.m. in Spokane before Judge Van Sickle. The address of the courthouse is: 920 W. Riverside Avenue, Spokane, WA. It is open to the public, and I'm sure that if you can be present, Ellreese and I would appreciate it greatly.

Tina

We covered this earlier, here.

Ellreese Daniel's trial schedule

Ellreese Daniels was the Crew Boss and Type 3 Incident Commander on the Thirtymile Fire near Winthrop, Washington in 2001 on which four members of his crew were overrun by fire and died. On January 30, 2007 the U.S. Attorney in Spokane, Washington charged him with four counts of involuntary manslaughter and seven counts of making false statements.

Now the trial schedule has been established by the court:

THIS MATTER is scheduled for trial beginning May 5, 2008 and ending July 2, 2008. Counsel shall meet with the Court in chambers at 8:30 a.m. on the first day of trial. Jury Selection will begin at 10:00 a.m. Trial will be held each day from 9:00 a.m. to 12:00 p.m. and from 1:30 p.m. to 4:30 p.m. excluding the following days: May 9, May 16, May 22, May 23, May 26, June 5, June 6, June 20, and June 23 -27.

I hope that there will be some people attending the trial as spectators who will be recognizable as firefighters. But since it appears that the trial could go on for 2 months, that's going to be difficult to do on a continuing basis.

We covered this issue earlier, here, here, and here.

Ellreese Daniel's trial begins May 5

Posted on Wildlandfire.com was this letter from the Forest Supervisor of the Okanogan-Wenatchee National Forest about the upcoming trial:

Okanogan-Wenatchee Employees:

The trial of our employee Ellreese Daniels is scheduled to begin May 5. He was indicted by a grand jury on four counts of involuntary manslaughter and seven counts of making false statements based on actions in his role as crew boss during the Thirtymile tragedy in 2001. I struggle with the reality of criminal charges against one of our own employees. I was not here in 2001, but today I feel the anxiety and fears of the firefighting community. I am also deeply saddened at the loss families experienced. Yet, in the midst of this swirl of strong emotion, we must go on.

I intend to support Ellreese by ensuring I do not interfere with a fair and speedy trial. All we can do for the families, employees and the American public is cooperate with the defense and prosecution by providing knowledgeable witnesses to testify honestly and truthfully. Then, let the justice system work based on the facts of the case. In the end, the judge and jury will decide the outcome of the trial.

This case will likely generate national media interest. If you want to speak with the media, then it is critical that you emphasize to them that you are speaking for yourself, as an individual, on you own time, not for the Forest Service or in any official capacity. It is your choice as an individual, representing your personal views to speak to a reporter. I offer this thought though. Ask yourself, “How will my comments influence the ability of the court to provide a fair and speedy trial”? If you are asked to comment as a Forest Service employee, please refer that request to Glen Sachet (503-808-2790) in the Regional Office.

Some of you will testify as witnesses for the defense or prosecution, or you will know someone who is testifying. The emotions of the tragedy may return. Don’t hesitate to talk with your line or staff officer, union representative, or contact the Employee Assistance Program for help.

I plan on attending as much of the trial as possible. When I’m not there, my representative will be. I will wear my uniform proudly in support of all employees and the Agency. I have identified a few employees that will serve a variety of roles in an official capacity at the trial, including keeping you informed of the proceedings. Others interested in attending can do so on their own time, not in an official capacity, with the use of leave pre-approved by their supervisor.

Maureen Hanson, Bobbie Scopa and I will be holding meetings at HQ and the Districts next week to discuss the upcoming trial and answer employee questions.

Finally, this has been and will continue to be a very emotional time. Please be sensitive and understanding of the feelings of others around you, and take extra care of yourselves.

Sincerely,

Becki

Ellreese Daniel's trial

As you probably know, Ellreese Daniels was the Crew Boss and Type 3 Incident Commander on the Thirtymile Fire near Winthrop, Washington in 2001 on which four members of his crew were overrun by fire and died. On January 30, 2007 the U.S. Attorney in Spokane, Washington charged him with four counts of involuntary manslaughter and seven counts of making false statements.

On February 20, 2007, the IAWF released a survey of 3,362 firefighters which showed that 36% of the full-time wildland firefighters surveyed will make themselves less available to be assigned to wildland fires as a direct result of these federal charges.

Here is an update from Wildlandfire.com

"I met with Ellreesse's Federal Public Defender Tina Hunt here in Missoula on Thursday: she seems well prepared for the May 5th trial date, and hopes that the Judge will approve a site visit for the jurors. We talked about many of the issues that are well known to all of us, as well as some tactics and qualifications issues. Tina still expects a 6+ week long trial.

There will be lots of witnesses, especially on the Government side, telling their stories about what they saw, heard, were told, experienced. The 10/18 will be an important focus!
Maybe by July 1st, we'll have a clearer picture of the impacts of this attempted mis-carriage of justice. Tina was highly complimentary of many of the R-6 Fire Overhead that she has interviewed.

She encouraged firefighter attendance in support of Ellreese at the trial, yellow Nomex shirts and all!

Keep the Faith!

Dick Mangan"

Trial Date Changed for Ellreese Daniels

Ellreese Daniels is facing criminal charges for his involvement in the fatal Thirty-Mile Fire. His trial date has been changed from April 14 to May 5. Here is more information about the trial from the Wenatchee World:

SPOKANE — A federal judge presiding over the case of Ellreese Daniels on Friday put off making a decision on whether the jury should be allowed to visit the site of the Thirtymile Fire north of Winthrop where four firefighters died in 2001.

Daniels is charged with four counts of involuntary manslaughter for failing to order his firefighters to a safe area as flames advanced toward him and his crew on July 10, 2001. He is also charged with seven counts of making false statements to investigators.

Daniels’ lawyer wants the jury to see the site because pictures and videos do not provide enough detail for the jury to judge if Daniels was negligent in not getting his crew to a safe spot.

“To deny the jurors the ability to view the scene will significantly impair Mr. Daniels’ right to present the defense of his case,” Daniels’ lawyer wrote in a recent motion.

Prosecutors say the site is so well documented that there’s no need for the jury to see in person the place where 10 firefighters survived the fire in a wide spot on a road, while four died in their fire shelters on a rocky slope above.

The judge did not say when he will decide if the jury should visit the site, said prosecutor Tom Hopkins.

The judge did push back the trial date from April 14 to May 5.

The International Association of Wildland Fire conducted a survey of over 3,300 firefighters about the repercussions of a firefighter facing criminal charges following an accident on a fire. HERE is a summary of their findings.

Well Written Reviews of Two Wildland Fire Books

Towards the end of last year two books about wildland fire were published. “The Thirtymile Fire,” by John N. Maclean, and "A Great Day to Fight Fire" by Mark Matthews. The topic of Maclean's book is obvious. Matthews writes about the 1949 Mann Gulch fire, which Maclean's father also covered in his book, "Young Men and Fire" which was finished in 1992 by others after his death.

A writer for the High Country News, Ray Ring, reviewed both new books, showing more understanding of fire than most reviewers. Here's a sample where Ring writes about "A Great Day to Fight Fire". (The entire review can be found on the Vail Trail site.)

"Matthews’ book on the gulch fire is the literary landmark there now. It’s also a kind of policy landmark. Matthews spends a few words on how the Mann Gulch deaths led to improvements in firefighting, but his underlying message is that, no matter what tactics we try, no matter what technologies we develop, wildfires will always be wild, chaotic and lethal. As global warming promotes more intense blazes, we can only reduce the risk of casualties by backing away from the flames. Let more fires burn on their own terms; that’s part of Matthews’ acceptance. And the next time prosecutors and next-of kin rush to assign blame for casualties, maybe we should hold off. The deaths and injuries radiating outward are already punishment enough. In the desperate moments when the flames come too close, we’re all perfect in our imperfections."