**(Bray Fire near author's cabin from helispot author worked on in 1960s
and 1970s on Helitack and Hotshot crew. Bray Fire stopped by Ed
Hollenshead's Team,
1990)**![](media/image1.wmf){width="6.478472222222222in"
height="4.625694444444444in"}

**CRIMINAL FIRE LAW**

**Mike Johns**[^1]

**Assistant U.S. Attorney**

**Senior Litigation Counsel**

**District of Arizona**

**602-514-7566**

**FAX 7760**

[**mike.johns@usdoj.gov**](mailto:mike.johns@usdoj.gov%0C)

[**BACKKGROUND**](mailto:mike.johns@usdoj.gov%0C)

Burnover fatalities currently create a random collision of law, policy,
fire science, safety science, politics, sociology and psychology among
those who will judge the bad outcome. The judges include survivors,
family members, peers, media, interest groups, elected officials, agency
administrators, accident investigators, writers, prosecutors, trial
judges and jurors. Law instructs us not to judge foresight in the light
of hindsight. Science instructs us that this is impossible unless
outcome knowledge is actually withheld from the judge. This creates
serious problems which require serious solutions. A joint effort by all
the Federal agencies to meet and form mutual understandings for all
aspects of burnover cases, including prevention, would significantly
improve the response to future accidents. It would also enhance ongoing
efforts to create a just safety culture within a high reliability
organization, and further the implementation of the new fire Doctrine.

**U.S. ATTORNEY'S ROLE AS PROSECUTOR**

The following is a description of the U.S. Attorney's role as prosecutor
according to the Supreme Court:

> "The United States Attorney is the representative not of an ordinary
> party to a controversy, but of a sovereignty whose obligation to
> govern impartially is as compelling as its obligation to govern at
> all; and whose interest, therefore, in a criminal prosecution is not
> that it shall win a case, but that justice shall be done. As such, he
> is in a peculiar and very definite sense the servant of the law, the
> twofold aim of which is that guilt shall not escape or innocence
> suffer. He may prosecute with earnestness and vigor - indeed, he
> should do so. But, while he may strike hard blows, he is not at
> liberty to strike foul ones. It is as much his duty to refrain from
> improper methods calculated to produce a wrongful conviction as it is
> to use every legitimate means to bring about a just one."

Justice Sutherland speaking for the Court in ***Berger v. United
States***, 295 U.S. 78, 88 (1935)

The Constitution requires separation of powers between the Executive and
Legislative branches of government, which makes it inappropriate for
legislators to interfere with prosecution decisions. Similarly,
attempting to influence witnesses is a crime of obstruction of justice.
A lesser known Federal law makes it a felony to try to deprive the
public of the honest services of a public official such as a U.S.
Attorney, 18 U.S.C. Section 1346. Nonetheless, the prosecutor is
entitled to consider the views of everyone, when making a prosecution
decision -- victims and perpetrators, governmental agencies, non-
governmental organizations, and the general public.

**ELEMENTS OF INVOLUNTARY MANSLAUGHTER**

Title 18 United States Code Section 1112 has the following elements
described in the standard jury instructions which must be proven beyond
a reasonable doubt in order to convict a firefighter of manslaughter for
a burnover fatality:

(1) The defendant committed a lawful act with wanton or reckless
    disregard for human life, which might produce death. and

(2) The defendant's act was the proximate cause of the death of the
    victim. "A proximate cause is one which played a substantial part in
    bringing about the death, so that the death was the direct result or
    a reasonably probable consequence of the defendant's act." and

(3) The killing was unlawful \[not legally privileged\]. and

(4) The defendant either knew that such conduct was a threat to the
    lives of others or knew of circumstances that would reasonably cause
    the defendant to foresee that such conduct might be a threat to the
    lives of others.

    There is also a jurisdictional element requiring that it occur
    within special Federal jurisdiction such as a National Park or if
    the victim is a Federal official.

In *United States v. Keith,* 605 F.2d 462, 463 (9^th^ Cir. 1979) the
court defined the relevant elements as follows: "the Government must
prove: (1) that the defendant acted with \"gross negligence,\" defined
as \"wanton or reckless disregard for human life;\" and (2) that the
defendant had actual knowledge that his conduct was a threat to the
lives of others, or had knowledge of such circumstances as could
reasonably be said to have made foreseeable to him the peril to which
his acts might subject others."

The element of "gross negligence" or "wanton or reckless disregard for
human life" is a challenging element to define further in the abstract.
In a civil context it has been defined as follows:

"This court has in the past stated that wanton (or gross) negligence is
highly potent, and when it is present it fairly proclaims itself in no
uncertain terms. It is 'in the air,' so to speak. It is flagrant and
evinces a lawless and destructive spirit." (citations omitted.)
*Cullison v. City of Peoria,* 120 Ariz. 165, 169 (Ariz. 1978).

The "proximate cause" or "legal cause" element is essentially a jury
question. As explained in *United States v. Main,* 113 F.3d 1046, 1049
(9^th^ Cir. 1997) there must not only be cause in fact, there must be
legal cause:

"All of the authorities agree that to be guilty of involuntary
manslaughter the harmful result must be within the risk foreseeably
created by the accused\'s conduct; if the physical causation is too
remote, the law will not take cognizance of it. 'The same result has
been achieved by requiring that the accused\'s conduct be a substantial
factor in causing the harmful result or that it be the proximate,
primary, direct, efficient, or legal cause of such harmful result.'
(citations omitted.) The thought is best expressed by the American Law
Institute, which does not care for expressing the rule in terms of
proximate cause but does require that 'the actual result' of the
unlawful behavior to be 'not too remote or accidental in its occurrence
to have a \[just\] bearing on the actor\'s liability or on the gravity
of his offense.' (citations omitted.)"

Regarding multiple causes of a death, the *Main* Court went on to
explain:

"Another way of putting it is to say that the intervening cause was "so
out-of-the-ordinary" that it is no longer fair to hold the defendant
liable. Joshua Dressler, *Understanding Criminal Law*  § 14.03(C)
(1995). \* \* \* . . . that judgment remains a judgment of fact, a
judgment that is in the province of the jury. When the jury is not told
that it must find that the victim\'s death was within the risk created
by the defendant\'s conduct an element of the crime has been erroneously
withdrawn from the jury. (citations omitted.)\* \* \* We are fortified
by our agreement with *United States v. Spinney,* 795 F.2d 1410, 1415
(9^th^ Cir. 1986): 'A basic tenet of criminal law is that the government
must prove that the defendant\'s conduct was the legal or proximate
cause of the resulting injury. Causation in criminal law has two
requirements: cause in fact and proximate cause.'  Once this basic tenet
is acknowledged it is apparent that the question of proximate cause must
go to the jury."

In a criminal OSHA prosecution involving willful violation of an OSHA
regulation resulting in death, the Court addressed the causation element
in several informative ways. *United States v. PITT-DesMoines, Inc.* 970
F.Supp.1359 (N.D. Ill. 1997):

"In order to convict a defendant of a criminal offense that includes a
causation element, the government must prove beyond a reasonable doubt
that the defendant\'s conduct was *both* the \"cause in fact\" *and* the
\"legal cause\" of the relevant harm. (citations omitted.) \* \* \* To
prove that a defendant\'s conduct was the \"cause in fact\" of a harm,
the government usually must demonstrate that the defendant\'s conduct
was the \"but-for cause\" of the harm.   In other words, the government
must show that [but for the defendant\'s conduct, the harm would not
have occurred]{.underline}. (underlining added.) \* \* \* In certain
highly unusual cases, it is logically impossible for the government to
prove \"but-for\" causation because \"two causes, each alone sufficient
to bring about the harmful result, operate\[d\] together to cause
it.\"   \* \* \* In such cases, the government may still prove cause in
fact by demonstrating that the defendant\'s conduct was a \"substantial
factor\" in bringing about the harm. (citations and footnote omitted.)"

Among the problems associated with the attribution of causation,
responsibility and blame is the use of "counterfactual" reasoning.
Counterfactual analysis requires the human mind to consider whether, if
the actor had done something different, the outcome would have been
different -- if only the Incident Commander had done X, the outcome
would have been different. Cognitive science now teaches that the more
we use counterfactual reasoning, the worse we make the hindsight bias,
because we cannot trick our subconscious mind into accepting an
alternate outcome it knows to be false. The underlined discussion of
"but-for cause" above is an example of counterfactual reasoning.
Semifactual reasoning is preferable because it does not require
acceptance of a false outcome: even if the Incident Commander had done
X, the outcome would have been the same. This type of reasoning does not
eliminate the hindsight bias but at least it does not make the bias
worse. See e.g., "Counterfactuals, Causal Attributions, and the
Hindsight Bias: A Conceptual Integration", N. Roese and J. Olson, 1996:

[http://www.psych.uiuc.edu/\~roese/Roese%20&%20Olson%20(1996).pdf](http://www.psych.uiuc.edu/~roese/Roese & Olson (1996).pdf);

and "When Debiasing backfires: Accessible Content and Accessibility
Experiences in Debiasing Hindsight", L. Sanna, et al. 2002:

<http://www2.gsb.columbia.edu/divisions/management/seminars/papers/schwarz.pdf>

and "Semifactual "even if" Thinking", R. McCloy and R. Byrne, 2002:

<http://www.tcd.ie/Psychology/Ruth_Byrne/pdf/mccloyandbyrne2002.pdf>

The Court in *United States v. PITT-DesMoines, Inc.*, *Supra.* further
described the problem associated with unwittingly mixing cause in fact
with legal cause:

"While there is no denying that some recent cases have imported the
substantial factor test from the cause-in-fact context and into the
legal-cause context, this development seems to make little sense in
terms of legal theory or logic. As explained above, the substantial
factor test addresses factual, physical causation in a narrow range of
cases in which \"but-for\" causation cannot be proven.   By contrast,
legal causation concerns foreseeability and fairness\-- not factual,
physical causation.   Whether a defendant\'s conduct was factually,
physically a substantial factor in bringing about the relevant harm has
little (if any) bearing on the question of whether the harm was within
the risk foreseeably created by the accused\'s original conduct.  
Causation in fact is concerned with what actually happened on the
ground, while legal causation is concerned with what could have been
foreseen beforehand.   The substantial factor test concerns what
actually happened on the ground (causation in fact), not what kinds of
harms could have been foreseen (legal causation).   For these reasons,
the recent tendency to import the substantial factor test into the
legal-cause context appears to have no basis in legal theory or logic.  
In any event, the court is not aware of any case or treatise explaining
or justifying this tendency in theoretical or logical terms."

The Court in *United States v. PITT-DesMoines, Inc.*, *Supra.* further
described the "foreseeability" requirement for a manslaughter
prosecution:

"To prove that a defendant\'s conduct was the \"legal cause\"
(or \"proximate cause\") of a harm, the government must prove that the
harm was a foreseeable and natural result of the conduct.  \* \* \*
(defendant\'s conduct was legal cause of death because death was
foreseeable result of conduct).   To convict a defendant of involuntary
manslaughter, for example, the government must prove that the victim\'s
death was \"within the risk foreseeably created by the accused\'s
conduct.\" (citations omitted.) 

In wildland burnover cases the "foreseeability" analysis is hampered by
the nature of wildland fire behavior, the nature of current safety
policies, accident investigation reports and the "hindsight bias", in
which we tend to believe that the outcome was more foreseeable than it
was, and that we surely would have foreseen it:

> "Consider a decision maker who has been caught unprepared by some turn
> of events and who tries to see where he went wrong by recreating his
> preoutcome knowledge state of mind. If, in retrospect, the event
> appears to have seemed relatively likely, he can do little more than
> berate himself for not taking the action which his knowledge seems to
> have dictated. He might be said to add the insult of regret to the
> injury inflicted by the event itself. When second guessed by a
> hindsightful observer, his misfortune appears to have been
> incompetence, folly, or worse." "Hindsight = Foresight: The effect of
> outcome knowledge on judgment under uncertainty", B. Fischoff 1975,
> [[http://qhc.bmjjournals.com/cgi/reprint/12/4/304]{.underline}](http://qhc.bmjjournals.com/cgi/reprint/12/4/304)

When the outcome is tragic, as in fatality cases, the "outcome bias"
tends to make us believe not only that the quality of the decision was
bad, but that the character of the decision maker was also bad. E.g. "On
the Assessment of Decision Quality: Considerations Regarding Utility,
Conflict and Accountability", Gideon Keren and Wandi Bruine de Bruin,
from *Thinking: Psychological Perspectives on Reasoning, Judgment and
Decision Making*, Eds. Harding, D and Macchi, L., Wiley 2003.

The Court in *United States v. PITT-DesMoines, Inc.*, *Supra.* Made the
following effort to make sense of the difference between cause in fact
and legal cause:

"In this regard, one can imagine a situation in which a violation of the
\[OSHA regulation\] connection \[rule\] would *not* be the legal cause
of a worker\'s death even though the violation was the cause in fact of
the worker\'s death.   Consider a scenario in which a company\'s failure
to abide by the connection rule were to result in a pile of unused bolts
left on the sidewalk, and a worker were to trip on the pile of bolts,
fall under a moving forklift, and die as a result.   Under this
scenario, if the company had abided by the connection rule, it would
have used up all of the bolts and the worker would not have tripped and
died; but for the violation, the worker would not have died.   However,
having a worker trip on a pile of bolts and fall under a moving forklift
is an extremely improbable event\--not a foreseeable result of violating
the connection rule.   Therefore, the violation would be the cause in
fact but not the legal cause of the worker\'s death.   Admittedly, the
scenario just described is highly fanciful. But that is exactly the
point of legal causation:  to relieve defendants of liability for events
they could not possibly have foreseen." (footnote omitted.)

If we assume the hypothesis that violations of the 10 Standard Fire
Orders and failure to mitigate the 18 Watchout Situations create a
foreseeable risk of death if the fire blows up, the foreseeability
element seems easily established by virtually every burnover accident
report -- if the 10 SFO's and 18 Watchouts are appropriate criteria for
establishing legal causation.

The Affidavit of probable cause in support of the 30 Mile Fire Criminal
Complaint, page 51, alleged proximate cause on the grounds that the IC
either knew of the threat or should have foreseen the threat "because
his actions disregarded established standards and procedures for
firefighting that the Forest Service, many other wildland firefighting
agencies, and the Occupational Health and Safety Administration
recognize."

**CAUSAL FACTORS IN ACCIDENT REPORTING**

The Cramer Fire Management Report cited as "causal factors" a variety of
policy departures (acts and omissions) by both line officers and staff
on the fire. Whether a "causal factor" would constitute legal cause of a
death in a criminal case, beyond a reasonable doubt, requires close
scrutiny. Whether a policy departure constitutes reckless disregard for
human life also requires close scrutiny.

The Cramer Fire report included as causal factors, policy violations
such as failure to prepare a Wildland Fire Situation Analysis (WFSA) or
a Complexity Analysis. Would preparation of a Complexity Analysis have
actually changed the outcome? This type of question is a
"counterfactual" as described above because it asks the mind to accept
an outcome which the mind, with outcome knowledge, knows is false.
Accident investigators should use "semifactual" reasoning because it
does not increase the hindsight bias: "Even if a Complexity Analysis had
been prepared, the outcome would have been the same?" It is not possible
to avoid the hindsight bias, but at least we can avoid making it worse,
by using semifactual analysis.

The 2008 version of the Forest Service's Accident Prevention Analysis,
Implementation Guide, Appendix A (interview guide) page 29, incorporates
direction to reduce the hindsight bias and to use semifactual analysis
in the interview process.

The Affidavit in support of the 30 Mile Fire Criminal Complaint, page
13, stated:

"The Forest Service Safety & Accident Investigation Team concluded that
the fatalities were preventable and that a combination of human errors
and conditions in the canyon caused the loss of life." \[followed by the
12 significant causal factors in the Accident Report\]

**VIOLATION OF FIRE ORDERS AND FAILURE TO MITIGATE WATCHOUTS**

OSHA acknowledged during the Cramer Fire investigation the ongoing
debate about the 10 SFO's and 18 Watchout Situations:

> "According to several off-the-record statements, it is accepted by
> many firefighters that at least one or more of the Standard Fire
> Orders must be violated in order to successfully suppress most if not
> all fires." OSHA Cramer Fire Briefing Paper.

OSHA advised the OIG during the 30 Mile Fire investigation, that OSHA
views the 10 SFO's and 18 Watchout Situations to be "industry standards
for safe wildland firefighting operations". Parker Affidavit in support
of Criminal Complaint, page 20.

Ted Putnam's article "The Ten Standard Fire Orders: Can Anyone Follow
them?" takes a critical look at the 10 Standard Fire Orders and the 18
Situations That Shout Watchout in the context of human psychology and
real fire experience. He concludes that it is impossible to follow the
10 Standard Fire Orders and still fight the fire. Curt Braun puts it
another way, ". . . it is very likely that firefighters can comply with
\[the 10 SFOs\] and still place their safety in jeopardy." Curt C.
Braun, Ph.D., "Standard Failures", *Wildfire*, September/Octber 2007.
Putnam, Braun and others have made constructive suggestions about
re-writing the fire orders to be more effective as decision making
tools.

The alleged violations of the 10 SFOs and 18 Watchouts often found in
Accident Investigation Reports as causal factors, have been cited in
both civil actions against the United States and in criminal actions
brought by the United States as evidence of civil or criminal liability.
Recently, the courts have found that while compliance with the 10 SFOs
is considered mandatory by the fire agencies, the 10 SFOs do not tell
firefighters how to fight the fire, and leave so much decision space to
policy choices that following (or violating) them is a discretionary act
or omission for which the United States cannot be held liable. *Backfire
2000et al., v. United States,* (D. Montana 2006) *affirmed* 2008 WL
1741493 (9^th^ Cir. 2008) (unpublished). As explained by the district
court:

> ". . . these policies contained mandates. But each mandatory directive
> provides discretion to the firefighter. \* \* \* The Orders tend
> toward vagueness. Standard Fire Order Number Ten instructs
> firefighters to 'stay alert, keep calm, think clearly, act
> decisively.' This is the language of discretion, not of specific
> mandatory actions or protocols. The non-specific language of the
> Government's policies and directives, such as the Standing Orders and
> Watchout Situations, supports the Government's position. These are
> flexible principles to be used in fighting fire, an activity that
> depends on firefighters' judgment, common sense, and experience."

Accident Investigation Reports find violations of the 10 SFOs and
failure to mitigate the 18 Situations That Shout Watchout for the sole
purpose of improving safety. Such findings are based solely on
professional opinion with the benefit of hindsight. Use of such findings
for other purposes including the attribution of legal causation,
responsibility or blame, or imposition of liability, is problematic.
Causation and liability need legal analysis independent of any safety
reporting which has been done.

**WILLFULNESS FINDINGS BY OSHA AND THE HAZARD PAY REGULATION**

The OSHA regulation found to have been willfully violated during the
Cramer Fire requires agencies to provide work free from hazards likely
to cause death or serious harm:

> "(a) The head of each agency shall furnish to each employee employment
> and a place of employment which are free from recognized hazards that
> are causing or are likely to cause death or serious physical harm". 23
> C.F.R. Section 1960.8.

Somewhat inconsistently, agencies are not authorized to pay hazard pay
to firefighters unless these hazards **cannot** be reduced to
insignificant levels. Hazard pay is authorized if:

> "(2) Using the knowledge, skills and abilities that are described in
> the position description, the employee cannot control the hazard or
> physical hardship; thus, the risk is not reduced to a less than
> significant level." 5 C.F.R. Section 550.904(b)(2).

Whether management of an incident involved a legally acceptable
"significant" risk or legally unacceptable "likelihood" of harm may
often be determined on simply the outcome, with the benefit of
hindsight. Indeed, the legal doctrine of *res ipsa loquiter* (the thing
speaks for itself) is grounded in human psychology and is just now being
written out of the law. The doctrine allowed the trier of fact to find
causation based on negligence simply if they thought people should not
get killed when engaged in such activities. The psychological process is
now understood to be the "representativeness heuristic (mental
shortcut)" which leads to the "inverse fallacy" which ". . . refers to
the tendency to treat the probability of a hypothesis given the evidence
(for example, the probability that a defendant was negligent given that
the plaintiff was injured) as the same as, or close to, the probability
of the evidence given the hypothesis (for example, the probability that
the plaintiff would be injured if the defendant were negligent)." Quoted
from "Inside the Judicial Mind", Chris Guthrie, Jeffrey J Rachlinski,
Andrew J. Wistrich, 86 Cornell L.Rev. 777 (2001).

In tests adapted from "Inside the Judicial Mind", this author used the
fatal Dude Fire burnover to test the likelihood that students at the
Serious Accident Investigation course, students at the RX 300 Burn Boss
course, and civil and criminal attorneys in my own office, would fall
victim to the inverse fallacy. In each test, they were given base rate
probability data which calculated to only an 8.3% chance that the escape
route was negligently selected. Nonetheless, most of them decided that
the likelihood of negligence in selecting the escape route was much
greater, many in the 75% - 100% range. Simply put, we tend to think
wildland firefighters don't get killed on fires unless someone was
negligent.

According to the Cramer Fire OSHA Briefing Paper, acts and omissions met
their definition of "willfulness":

> "There was a complete failure of key personnel and management to
> follow the Ten Standard Fire Orders and mitigate many of the Watch Out
> Situations evident in the hours and even days leading up to these
> fatalities. It is the wholesale failure of such core safety principles
> that points most directly to the \"conscious disregard\" and/or
> \"plain indifference\" to the dangers of a fire under widely
> recognized extremely hazardous conditions."

According to the Cramer Fire OSHA Briefing Paper, the willful acts and
omissions were not directed at the Incident Commander, but at the entire
fire management staff:

"The alleged willful violations of the Fire Orders are not meant to
point blame at the Incident Commander. As with most safety problems, it
is with the lowest level of supervision where the \"rubber meets the
road.\" Higher-level fire program managers and line officers did not
provide oversight or direction, and did not make critical decisions. Not
only were the increasing complexities and hazardous conditions apparent
to leadership at the fire, at several times information was provided (or
should have been provided) to the Zone Duty Officer, the District
Ranger, the Central Idaho Dispatch Manager, the Forest FMO, and the
Forest Operations Staff Officer about the hazardous conditions,
uncontrolled fire growth, and perceived inability of the IC to
competently handle the situation." OSHA Cramer Fire Briefing Paper.

The Affidavit in support of the 30 Mile Fire Criminal Complaint, page
13, stated:

"OSHA found that the Forest Service supervisors had violated all ten of
the Standard Fire Orders in the National Wildfire Coordinating Group
[Fireline Handbook]{.underline} and cited the Forest Service for several
'willful' violations of the Occupational Safety and Health Act."

**DECISIONMAKING AND JUDGING**

Decision making and judging are complex sciences. Cognitive science has
greatly expanded our ability to understand and apply new knowledge for
our decision support systems on the fire ground, and for our accident
investigation and legal systems when there is a bad outcome. This author
submitted a 61 page paper on this subject for the Serious Accident
Investigations Course, entitled "WHAT WAS HE THINKING? BEYOND BIAS- TO
DECISION MAKING AND JUDGING", March 8, 2007. A copy of this paper is
available in the Documents Worth Reading section at Wildlandfire.com:

<http://www.wildlandfire.com/arc/arc.htm>

The cognitive and legal papers cited in this paper are available from
this author. The Contents and Summary follow:

**[CONTENTS]{.underline}**

**I. Summary 1**

**II. Cognitive Biases 6**

**III. Outcome Knowledge and Judging Quality of Decisions 21**

**IV. Coherence Based Reasoning 25**

**V. Knowledge Structures and Schemas 34**

**VI. Dispositionist Thinking and Judging - causation, responsibility
and blame 37**

**VII. Interpersonal and Intergroup Conflict 55**

**VIII. Cultural Cognition 58**

**IX. Conclusion 61**

**[I. Summary.]{.underline}**

Psychological research demonstrates that a wide variety of **cognitive
biases** and **heuristics (cognitive shortcuts)** adversely affect
decision making, and the ability to judge decisions made by others.
Coherence-based reasoning can lead to skewed decisions. Improved
knowledge structures and schemas lead to better decisions. Due to
**attribution errors** and **dispositionist** thinking, we tend to
ascribe more to preferences and will, while missing the situation. This
can skew opinions on causation, responsibility and blame, and decrease
effectiveness of remedial measures.

Because there is an infinite amount of information which can be brought
to bear on any decision process, the mind employs simplifying processes
which facilitate timely decisions, with enough confidence to carry them
out. Otherwise the situation could become fatal before a decision is
made. Information is quickly analyzed against one's own knowledge
structures and schemas which operate subconsciously and include
stereotypes and what firefighters call "slides" from past experiences.
**Recognition Primed Decision making (RPD)** facilitates good, quick
decisions in many situations, but the available information is often
ambiguous and conflicting, requiring **Critical Thinking.** RPD is
insufficient for the less experienced, younger firefighters, and can
cause overconfidence in the very experienced firefighters - critical
thinking fills the gap. However, critical thinking is contaminated with
cognitive biases, heuristics (short cuts) and processes which need to be
understood and mitigated for improved decision making.

During the decision process, alternatives begin to emerge in a
bi-directional process which begins to favor one hypothesis for action
over the others. The **confirmation bias** finds within memory,
information which tends to confirm the favored hypothesis, while not
recalling, minimizing or ignoring information which tends to refute the
hypothesis. Temporary **coherence shifts** begin to attribute more
belief that evidence which is ambiguous or conflicting actually supports
the emerging decision, and the process results in a confident decision
so the actor can act - the leader can lead - analysis - paralysis is
overcome. More often than not these cognitive processes lead to correct
or at least acceptable decisions. Unfortunately, poor knowledge
structures and schemas, cognitive shortcuts, biases and coherence shifts
can generate a confident decision which is just flat wrong from a purely
rational analysis, especially in hindsight. Studies have shown that
coherence shifts and many cognitive biases can be significantly reduced.
Some cannot, and need to be mitigated.

The United States Navy has developed and implemented a program called
**Tactical Decision Making Under Stress (TADMUS)** to improve decisions
whether to engage a radar screen target - is it civilian, friendly,
hostile, hostile but merely on patrol or harassing, or does the hostile
intend to attack the ship? The program was built around known human
cognitive decision making processes, including known cognitive biases
such as the **confirmation bias**, **availability bias,
representativeness heuristic, contrast bias and framing.** The program
employs de-biasing decision support systems. The program combines
decision making training with a **Decision Support System (DSS)** which
is not "command" based (what to do), but rather "information" and
"status" based, with **trigger point** reminders and a "**Quick Check"
de-biasing technique** when time to decide is short. Unlike command
based systems, the system provides critical information in graphic and
other forms compatible with human cognitive processes. Short and long
term memory is relieved, leaving more capacity for cognition.
Situational awareness is enhanced. The system fits the "**story model**"
of human decision making, in which the most coherent story - rather than
specific pieces of evidence - becomes the decision and action taken. The
DSS rejects the "checklist mentality", replacing it with an
"intelligent" assistant, promoting the development and analysis of
alternatives within the human mind. The program acknowledges the role of
RPD, and uses Critical Thinking to fill in the gap. The results of
critical thinking training greatly reduced "**coherence shifts**" and
the effects of biases, increasing the number of correct decisions and
resulting actions. E.g., "Integrated Critical Thinking Training and
Decision Support for Tactical Anti-Air Warfare", Marvin S. Cohen, Ph.D.,
Jared T. Freeman, Ph.D., and Bryan B. Thompson; "Decisionmaking in
Complex Military Environments", Gary Klein; "Principles for Intelligent
Decision Aiding", Susan G. Hutchins, 1996.

Many scholars have noted the unfortunate use of the term "bias" in
describing what has turned out to be normal human cognitive processes,
such as the "**Hindsight Bias**", but the nomenclature is firmly
established in the literature and therefore unavoidable. Human emotions
also plays a part in higher cognition - they are not completely separate
processes, and emotion can play a strong role in decision making under
stress and uncertainty. E.g., "Deep Survival: Who Lives, Who Dies, and
Why", Laurence Gonzales.

The **Outcome Bias** contaminates our ability to judge the quality of a
decision and the character of the person who made it. There is an entire
field of cognitive science on **how to judge the quality of another's
decision**, and at least three models for doing so. E.g. "On the
Assessment of Decision Quality: Considerations Regarding Utility,
Conflict and Accountability", Gideon Keren and Wandi Bruine de Bruin,
from *Thinking: Psychological Perspectives on Reasoning, Judgment and
Decision Making*, Eds. Harding, D and Macchi, L., Wiley 2003.

The research also helps explain such things as inter-group conflict, why
it is so hard to change someone's mind, why history keeps repeating
itself, and many other social and political phenomena. An interesting
study on **Belief Perseverance** used a model in which people formed
beliefs about which kind of personality made for a **better
firefighter**. Groups were intentionally mislead - lied to - and told
afterward that they had been intentionally mislead. Nonetheless, they
continued to hold onto their misinformed beliefs against every effort to
correct it, including explaining the lies and trickery. "Perseverance of
Social Theories: The Role of Explanation in the Persistence of
Discredited Information", Craig A. Anderson, Mark R. Lepper, and Lee
Ross, Journal of Personality and Social Psychology, Vol 39, No.6,
1037-1049 (1980).

**Cultural cognition** sheds light on why social-political issues can
seem intractable -- resistant to change based merely on empirical
evidence, and provides methods for progress in resolving them.

The new **Foundational Doctrine** for Wildland Firefighters continues to
rely on quality, professional decision making on the fire ground. Region
One\'s recent Doctrinal policy explains, for example, that risk
management is evaluated on the decision-making process, not on the
outcome; training will teach employees how to think and make appropriate
decisions; safe practices are to be embedded in all workforce decisions
and actions; training will teach how to think, make good decisions, and
act decisively - not what to think, and so on. "Foundational Doctrine
and Guiding Principles for The Northern Region Fire, Aviation and Air
Program", USDA Forest Service, October 2006.

Understanding and training in decision processes, including **Critical
Thinking**, seems appropriate at every level from basic training to
advanced leadership training. The current Leadership Training courses
teach RPD but expressly do not teach critical thinking. Improvement of
our existing **Decision Support Systems** could also facilitate better
decisions under stress and uncertainty.

Building all the **appropriate knowledge structures and schemas** is
also important at every level of training. Our knowledge of fire
behavior, including conditions conducive to blow ups, has exploded over
the past few decades.

The requirements for creating a "**Just Culture**" and "**High
Reliability Organization**" is beyond the scope here, but this paper
provides useful knowledge in understanding those requirements as well.
Current accident investigation processes are inconsistent with the
requirements. Number range CHAPTERDr. Mary Omodei and others at the
Complex Decision Research Group, LaTrobe University, Melbourne,
Australia, developed a protocol for wildland fire accident
investigations to get to the bottom of human factors and decision
making. They are collecting the data. They note how the hindsight bias
impedes collecting the information needed to understand the role of
human factors. They also note how the self-affirming biases or
"self-protective justifications" are a normal part of human cognition
and should be expected to occur and need to be dealt with appropriately
in an accident investigation. See "**Identifying Why Even Well-Trained
Firefighters Make Unsafe Decisions: A Human Factors Interview
Protocol**", In Butler, B.W. and Alexander, M.E. Eds. 2005. Eighth
International Wildland Firefighter Safety Summit-Human Factors-10 Years
Later. Dr. Omodei has commented to me that "The threat of litigation
and/or being called before an enquiry, either judicial or agency
mandated, is in my view the single biggest impediment to accurate
investigation and/or research into the human factors underlying
"problematic" decision making in incident management (at all levels)."
They recommend separate, privileged investigations to get at the human
factors. They recognize the value of Safe-Net type reporting.

In a similar vein, the following is from the medical side of the same
issue:

"The importance of near-misses and no harm events stems from the
documented observation of their frequency: they occur 300 to 400 times
more often than actual adverse events and thus enable quantitative
analysis and modeling."

\* \* \*

"One study documented that intensive care entails 178 activities per
patient per day and reported an average of 1.2 errors per patient per
day.\[fn.29\] This works out to safety ratio of 0.955 compared with
civilian airline ratio of 0.98." "Nature of Human Error, Implications
for Surgical Practice", Alfred Cuschieri, MD, FRCS, FACS (Hon), FRSE

AMERICAN SURGICAL ASSOCIATION FORUM, Annals of Surgery • Volume 244,
Number 5, November 2006.

For further analysis of how the hindsight bias and the outcome bias
interfere with current accident analysis and prevention efforts, see
also "**Perspectives on Human Error. Hindsight Biases and Local
Rationality"**, Woods, D.D. and Cook, R.I., In F. Durso (Ed.), Handbook
of applied cognitive psychology (pp. 141-191). NY Wiley.

The intent of this paper, then, is to encourage better decision making,
better actions, better judgments about the decisions and actions of
others, and to encourage development of better decision support systems
and remedial measures.

**STANDARD OR BURDEN OF PROOF**

The purpose of accident reports is to provide timely recommendations
back to the field to avoid future accidents, and is fulfilled by the
exercise of professional judgment. These kinds of reports are completed
in a relatively short time period, sometimes to the frustration of the
investigators themselves. The purpose of OSHA reports includes making
the workplace safe and supporting findings and abatement orders.
Substantial evidence must support OSHA's action but there can be
substantial evidence to the contrary and the findings will withstand
judicial review. There is no judicial review available as to Federal
agency employers.

Criminal liability requires admissible evidence and proof of all
elements of the crime beyond a reasonable doubt. Among the issues which
all the agencies should address is the extent to which Accident
Investigation Reports or OSHA findings should be used in support of
criminal prosecutions. Rule of Evidence 403 provides that evidence such
as accident reports can be excluded from a trial if their probative
value is outweighed by unfair prejudice. Reports intended for use in
safety may not be appropriate for use in determining criminal liability.

**DEFENSE OF MANSLAUGHTER CASES BY DOJ**

In the Ruby Ridge case, ***Idaho v. Horiuchi**,* 253 F.3d 359 (9^th^
Cir. 2001)(later vacated as moot when Idaho voluntarily dismissed the
charges) the State brought criminal charges for manslaughter against a
Federal agent who shot at a fugitive but killed the fugitive's wife. The
Department of Justice provided the successful defense based on Supremacy
Clause immunity which shields Federal employees who do what they are
authorized to do and do no more than is reasonably necessary to carry
out the job. Defending Federal employees charged with manslaughter has
been our traditional role in the past. State and local prosecutors may
consider filing manslaughter charges against Federal firefighters, but
face the possible application of Supremacy Clause immunity.

**OFFICE OF INSPECTOR GENERAL (OIG), DEPARTMENT OF AGRICULTURE**

Public Law 107-203 (2002) requires the OIG to investigate all burnover
or entrapment fatalities of a Forest Service employee and to report the
results to the Secretary and the Congress. The OIG also routinely sends
a report to the U.S. Attorney for the District where the incident
occurred regardless whether the report supports a criminal charge. It
would be helpful if OIG investigators were experts in wildland fire
accident prevention and investigation, and were to meet with all the
other involved agencies in how to deal with burnovers. There is an
ongoing effort to eliminate this provision from Federal law.

**EXAMPLES OF MANSLAUGHTER PROSECUTIONS**

The following examples show behavior of the kind which the criminal law
is designed to deter and punish. In ***United States v. LaBrecque***,
419 F.Supp. 430 (D. N.J. 1976) the grossly negligent captain of a
pleasure craft was held to stand trial for involuntary manslaughter
where the rigging on the vessel was loose and the hull was in a state of
disrepair. The defendant had been advised by persons who had sailed the
New Jersey coast many times not to travel those waters in January.
Further, the three young men who made up the crew were not experienced
sailors but college volunteers. Although the defendant had been advised
of the critical importance of having a ship-to-shore radio on board, and
although he had promised the father of one of the crew that a radio
would be on board, he made the voyage without a radio. When the ship
sank he was unable to radio for help. The Coast Guard could have reached
the vessel in one hour. Defendant also made the crew stay in the water
so the life raft wouldn't sink, while he kept his dog in the life raft.
The court noted that certainly the evidence concerning the absence of a
radio is sufficient, by itself, to take the case to the jury on the
issue of gross negligence.

In ***Arizona v. Charles Long**,* (January 3, 2005) the operator of a
tough-love boot camp for troubled teens. For discipline, he made the
boys sit in the hot desert sun without water. He was convicted of
reckless manslaughter in the death of a 14 year old who had symptoms of
severe dehydration -- they took him to a hotel bathtub to try to
re-hydrate him, not to a hospital. He was also found guilty of
aggravated assault for threatening to slit the throat of another teen.
The jury deadlocked on 8 other counts of child abuse related to forcing
kids to sit in the desert sun without water as discipline.

In ***United States v. Wood**,* 207 F.3d 1222 (Tenth Circuit 2000) a
physician at a VA hospital was charged with murder but convicted of
involuntary manslaughter for intentionally administering an overdose of
a toxic medicine used in the euthanasia of animals in violation of the
hospital's protocol and despite being warned by the nurse not to do so.

**PRETRIAL DIVERSION**

If a prosecutor decides that probable cause exists and that a jury is
likely to convict, the prosecutor then considers whether there are
adequate non-criminal alternatives to prosecution. In Cramer, the U.S.
Attorney decided that pretrial diversion was appropriate. Prosecutors
will consider non-criminal means of accountability, acceptance of
responsibility, and similar factors in deciding whether pretrial
diversion is appropriate.

Pretrial diversion is a non-criminal alternative to prosecution which
seeks to divert certain offenders from traditional criminal justice
processing into a program of supervision and services administered by
the U.S. Probation Service. In the majority of cases, offenders are
diverted at the pre-charge stage. Participants who successfully complete
the program will not be charged or, if charged, will have the charges
against them dismissed; unsuccessful participants are returned for
prosecution.

The major objectives of pretrial diversion are:

To prevent future criminal activity among certain offenders by diverting
them from traditional processing into community supervision and
services.

To save prosecutive and judicial resources for concentration on major
cases.

> To provide, where appropriate, a vehicle for restitution to
> communities and victims of crime.

**DELEGATIONS OF AUTHORITY FROM AGENCY TO INCIDENT COMMANDERS**

How does delegation of responsibility for a fire affect personal
liability? Delegations of responsibility/authority are common in the
civil law context which would include disciplinary issues.

For example, the forest Service Manual (FSM) 5131.04 provides that "Line
officers are responsible for all aspects of fire management, including
financial oversight of a wildland fire incident. Unlike other
responsibilities, financial oversight cannot be delegated."

However, despite delegation of responsibilities, the FSM is replete with
retained oversight responsibilities even after responsibility for an
incident is delegated. For example, FSM 5130.43(7) requires Forest
Supervisors and District Rangers to conduct an initial Complexity
Analysis at size-up "**and thereafter, as appropriate**, to assure the
qualifications of the Incident Commander are commensurate with the
complexity of the incident."

Prosecutors will look for acts or omissions which caused the death, and
compare them to the elements of involuntary manslaughter. Charges could
be brought against an immediate supervisor or co-worker (FSM 5135.04
assigns a duty to all) all the way up the chain of incident command and
organizational responsibility.

**TRANSITION TO INCIDENT COMMAND TEAM CAPABLE OF HANDLING MORE COMPLEX
INCIDENTS**

Transition from initial attack to extended attack must be treated as a
potentially life-threatening event, FSM 5130.3(4):

> "Transition from initial attack to extended attack can be especially
> dangerous. During this transition the fire shall be managed as a
> potentially life-threatening event. \* \* \* When a potentially
> life-threatening event exists, action shall be taken to provide for
> the safety of firefighters \* \* \* regardless of suppression costs or
> resource loss."

Provisions like these are in potential conflict with recent efforts at
cost containment such as Appropriate Management Response. The FSM needs
to be reviewed and re-written similar to the 10 SFOs and 18 Watchouts,
as part of the implementation of Doctrine, High Reliability Organizing
and Just Culture.

During transitions the pre-existing forces will remain subject to
liability for their acts and omissions as long as there remains
proximate cause between those acts or omissions and a fatality, despite
the fact that the fire has already been determined too complex for those
forces. The incoming forces will be subject to liability for
consequences proximately caused by their own acts or omissions,
including reckless failure to recognize and to mitigate whatever they
were left with by the outgoing forces.

**GARRITY ISSUES**

Employees have a Constitutional right not to incriminate themselves, but
employers have the right to investigate incidents. Typically, a
*Garrity* statement is one made by an officer to an internal affairs
investigator under threat of being fired for refusing to make the
statement. *Garrity v. New Jersey*, 385 U.S. 493, 497 (1967). If an
officer answers questions under an **explicit** threat that the officer
will be fired if he or she invokes the privilege against
self-incrimination, the officer\'s answers cannot be used in a
subsequent criminal investigation or prosecution. If the officer has
been given at least use immunity, the officer may be fired if he or she
continues to refuse to answer questions that are specifically, directly,
and narrowly related to the officer\'s performance of official duties.

Routine incident report statements have been held not to be "compelled"
but there is no experience yet regarding wildland fire fatality
reporting. The OIG and many Human Resource specialists are trained not
to accidentally make express threats of firing. The following OIG
warning in a non-custodial (no arrest) setting will probably result in a
finding that a statement is not compelled and can therefore be used
against the person giving the statement:

> \"Before I ask you any questions, or request a statement, you must
> understand your rights, which are:
>
> You have a right to remain silent if your answers may tend to
> incriminate you.
>
> Anything you say may be used as evidence both in an administrative
> proceeding or any future criminal proceeding involving you.
>
> If you refuse to answer the questions posed to you on the ground that
> the answers may tend to incriminate you, you cannot be dismissed
> solely for remaining silent. However, your silence can be construed in
> an administrative proceeding for its evidentiary value that is
> warranted by the facts surrounding your case.\"

Applying the *Garrity* rules in each case is problematic and should be
done with knowledgeable counsel. Where there **is** a threat of
termination for failure to cooperate, the situation can become complex.
For example, in *Sher v. Department of Veterans Affairs,* 488 F.3d 489
(1^st^ Cir. 2007) two of the judges ruled that the employee, who had
been given a letter from the U.S. Attorney declining prosecution for
certain acts but not others, who was represented by counsel, was
sufficiently immunized by the threat of termination so that he could be
sanctioned for refusal to give a statement. The dissenting judge
believed that the employee still had an objectively reasonable concern
that his statements could still be used against him because the letter
from the U.S. Attorney did not cover all the acts of the employee at
issue. The dissenting judge also believed that the employee should have
been given time to get clarification of the scope of immunity. The
dissenting judge also explained that this complex area of the law is
applied differently among the circuit courts, so the outcome of a
refusal to immediately cooperate in an investigation can depend on the
specific facts, as well as the specific location the employee is in:

"Given the complexity of this area of the law, it is not surprising that
the circuits are split as to whether a government employer is required
to advise an employee of his rights and obligations before he can be
disciplined for maintaining his silence. As I read the cases, three
circuits-the Fifth, Eighth, and Eleventh-have arguably held that the
government employer does not have a disclosure obligation. See *Hill v.
Johnson*, 160 F.3d 469, 471-72 (8th Cir.1998) ("\[T\]he mere failure
affirmatively to offer immunity is not an impermissible attempt to
compel a waiver of immunity."); *Hester v. City of Milledgeville*, 777
F.2d 1492, 1496 (11th Cir.1985) ("We fail \... to see how the city\'s
failure to offer the plaintiffs use immunity could make any
constitutional difference\.... \[A\]ny grant of use immunity to the
plaintiffs would have been duplicative."); *Gulden v. McCorkle*, 680
F.2d 1070, 1075 (5th Cir.1982), cert. denied,459 U.S. 1206, 103 S.Ct.
1194, 75 L.Ed.2d 439 (1983) ("Failure to tender immunity was simply not
the equivalent of an impermissible compelled waiver of immunity.").
However, even among these circuits, the answer at least in the Fifth and
Eleventh circuits is not wholly clear." (footnote omitted)

The fact that the *Sher* opinion is 23 pages long demonstrates the
complexity of applying the *Garrity* rule to a given event.

**GRAND JURY PRACTICE**

Federal grand jury proceedings are secret to the extent that Federal
agents and prosecutors cannot disclose such proceedings. Grand juries
determine probable cause. They are not assembled to determine guilt or
innocence. Grand jury subpoenas can be issued for testimony and
documents or other evidence prior to indictment. State laws vary whether
there is a requirement to submit exculpatory evidence to a grand jury.
Federal law does not require submission of exculpatory evidence, but DOJ
policy requires that grand jury proceedings be presented fairly, and
prosecutors with knowledge of substantial evidence which directly
refutes guilt should present it to the grand jury. Whether an accident
report or an OSHA report should be presented to a grand jury or would be
admissible at trial in light of potential prejudice (Evidence Rule 403)
is an open question.

Targets of an investigation are routinely invited to testify before the
grand jury. Whether a target should do so depends on each case and
should only be done on advice of counsel. Whether a defense expert will
be allowed to present evidence is discretionary with the prosecutor.
Hearsay is admissible before a grand jury.

Prosecutors can charge a criminal case without presenting it to a grand
jury, but the defendant will then be entitled to a preliminary hearing
as to probable cause.

**CONCLUSION**

Application of criminal law in burnover fatality incidents has been so
infrequent that there has not been much coordination and cross-training
among the interested agencies. The agencies could meet and improve their
responses to such incidents with the common goal of reducing accidents
through improved decision support systems and critical thinking
training, mutual understanding of applicable standards, implementation
of the new Doctrine, and creation of a just culture within a high
reliability organization.

[^1]: ^?^Views expressed are my own and not the official position of the
    Department of Justice or the U.S. Attorney for the District of
    Arizona. Prepared for the IAWF Conference '88 Fires, Yellowstone and
    Beyond, 2008.