Joshua Burger wins arson conviction appeal after serving 15 months

Joshua Burger’s jury conviction for setting his own business on fire was overturned by the Michigan Court of Appeals on Feb. 25 after he already had served 15 months in prison.
The Appeals Court reversed and vacated the defendant’s conviction and sentence, and remanded him for a new trial.
Burger’s appeals attorney Kevin S. Gentry of Howell insisted his client had no financial incentive to destroy his profitable pawn shop, Pawn Max, in Southgate.
In 2017, Wayne County Circuit Court Judge Paul Cusick wouldn’t allow defense witnesses to testify on Burger’s insurance coverage or personal finances. That decision “deprived the defendant of the ability to fully mount the defense that he had no financial motive to defraud the insurance company or set the building on fire,” the appeals court said in a 3-0 decision.
Wayne County prosecutors are asking the appeals court to reconsider the opinion.
Burger’s lawyers had argued that the pawn shop fire probably was caused by spontaneous combustion of oily rags Burger had been using for several days to clean a guitar and then placed in a can. Southgate Fire Chief Michael Sypula and Wyandotte Fire Chief Jeffrey Carley changed their testimony between the preliminary exam and the trial from finding two sources for the fire to finding just the one where the can with rags from the linseed oil was located. But they had not changed their written reports before trial or alerted the defense attorneys.
Burger, 32, who grew up in Sumpter Township, was paroled June 4, 2019 and his supervision discharge date is June 4, 2020. The date of offense was April 12, 2017 and he was sentenced on March 7, 2018 to 15 months to 20 years.
Defense attorneys David Griem and Krstina Joseph said they felt a critical witness, insurance adjuster Craig Becker, should have been allowed to testify. Becker’s testimony would have rebutted the prosecution’s insurance witness’ testimony and arguments made by prosecution that all damage to Burger’s business would have been automatically reimbursed under his insurance policy.
Burger had filed an insurance claim related to the fire in the amount of $574,954.68 for loss of contents. His insurance policy included coverage for fire damage, but a claim would not be paid if defendant was found to responsible for the damage.
The attorneys presented a six-page memo to the judge on March 5, 2018, two days before sentencing, asking for alternative sentencing. In a series of statements included in the memo, Burger was described as a “beloved, caring and generous member of a strong family with a wide network of friends and colleagues.”
Burger reportedly owned Southgate Exchange, Inc., the business, but not the building. He and his father Chris Whitt purchased the pawnshop in 2012 for $125,000 on a five-year land contract and it was paid off within six months.
At trial, Whitt testified that the rent, utilities, payroll and taxes were current. In 2016, the pawn shop had turned a profit of $427,000. As of the day of the fire, the pawn shop had turned $126,000 in profit and was on track to make more than $500,000.
Whitt further testified that the defendant had no financial problems, had a credit score of above 790, and believed financial stability was important.
The appeals court stated, “Because defendant should have the opportunity to fully present a defense, we vacate his conviction and sentence, and remand for a new trial.”
Burger’s landlord and owner of the building Diane Desantis was also excluded from trial testimony. In a written statement after the trial she said that she enjoyed having Burger as a tenant and would welcome him back in a heartbeat. In the memo, she said several months before the fire, Burger put an expensive new sign on the outside of the business.