Fire Lover (2002) Read online

  McCann then said, "Now the government, probably Mr. Matassa, will probably say, the first time he ever saw that manuscript was some time after the positive comparison. But we believe the evidence will show that the government had made contact with Mr. Gray prior to this positive comparison. And if it wasn't for the manuscript, there never would have been a positive comparison. That's what the evidence will show. That's why we are here today. At some point in time, the government decided, 'He's our suspect, let's follow him. Let's surveil him.' "

  McCann concluded his opening with: "A big part of this case will be the manuscript in relationship to the fingerprint, and whether or not that yellow paper came from that particular fire."

  It would be fair to say that the task force and prosecutors were very surprised. The defense case was almost completely based upon a government frame-up. An elaborate frame-up which would include Marvin Casey, unnamed fingerprint examiners at the L. A. County Sheriffs Department, the task-force investigators, and possibly the assistant U. S. attorneys, Stefan Stein and Walter Brown.

  This would be a vast government conspiracy, even though, as Pat Hanly put it, "We're working for a government that can't conspire to get out of its own way. A government that can't get us our paychecks on time. A government that always leaks everything."

  Hanly thought that Douglas McCann had picked a losing strategy. McCann had not only hurled down the gauntlet, he'd also thrown at them his sword, shield, and horse-the whole goddamn thing!

  Hanly wondered how a former law enforcer could strike out at other law enforcers but not take the stand in his own defense. Now it seemed that John Orr must testify.

  Prosecutor Carl Faller immediately wanted to meet head-on any defense assertion that the author of Points of Origin wrote about the fire series in the Central Valley only after learning about it from Fresno arson investigator Tom Kuczynski.

  The important portion of Kuczynski's testimony began when Faller asked, "Now, after the fire took place in 1987, at some later time did you have an occasion to discuss this particular case with the defendant, John Orr?"

  The witness said, "I asked him if he knew of any commercial buildings that were set on fire while they were open for business, and where a device was used. He said, basically, he hadn't heard of anything. And he told me about a hardware-store fire that he had a few years prior."

  That testimony by the witness effectively countered any suggestion that "Ski," as he was called, had provided details to John Orr about the Central Valley fire series, including that an arson investigator from the Fresno conference was suspected, details that had wound up in John Orr's novel.

  And if prosecutors Faller and Hanly were not very interested in the last few words in the witness's answer, another prosecutor certainly was: Michael J. Cabral from the Los Angeles District Attorney's Office, who had come to attend a part of the trial. The "hardware-store fire" that John Orr had gratuitously brought up to Kuczynski was the Ole's fire, which apparently had never been far from the defendant's consciousness.

  Another witness that day testified that he'd worked at House of Fabrics, a few stores away from Hancock Fabrics, and that two weeks after the Hancock Fabrics fire he discovered the remains of an incendiary device in a pile of pillow stuffing. It was the first time the jury would hear from a witness about the cigarette, matches, and rubber band, which they would come to know as a "signature device."

  The day's final witness had worked in Tulare at Family Bargain Center, and testified to a small fire and the finding of a delay device in a pile of pillows. The witness provided the jury another look at the cigarette, matches, and rubber band, but this time a piece of notebook paper had been found, partially intact.

  Pat Hanly then gave this witness a chance to directly place the defendant at the crime scene when he asked, "Did you see anybody in the store who stuck in your mind, either before or after the fire?"

  "Yeah," the witness answered, "there was a man that entered the store . . . basically looking down at a piece of paper in his hand."

  "Could you describe the piece of paper for us?"

  "It was a piece of yellow legal pad," the witness replied.

  And then after some testimony about the yellow notepaper being blank, and the customer looking down at it, he recounted the description of the man that he'd given to investigators:

  "He had dark hair, black hair, probably five-ten, medium build, mid-twenties, is what I put in the report."

  And because the defendant was nearly thirty-eight years old at the time of the fire, Hanly asked, "Now, would you please tell us what mid-twenties means to you?"

  The witness replied, "It's hard to judge somebody's age. I would say mid-twenties could be anywhere from twenty-four, twenty-five, up to maybe thirty-two, thirty-four."

  As soon as the jurors were in place the next morning, the prosecution called its star witness, Marvin Casey, who began by testifying that he was a fire captain for the city of Bakersfield with twenty-five years of service. He listed his bona fides as an expert in fire cause-and-origin analysis, and arson investigation. Then they got down to it-the attempted arson at CraftMart on January 16, 1987.

  Casey testified that there'd been a fire in a display rack and that he saw, in the dry powder from the store's fire extinguisher, the incendiary delay device: a cigarette, matches, rubber band, and scorched piece of yellow lined notebook paper. He described his careful collecting and packaging of the evidence.

  Because of Douglas McCann's opening statement about the notebook paper not being dated, Hanly asked the witness: "On January sixteenth, did you initial the yellow lined paper and date it?"

  "No," Casey answered.

  "And why is that?"

  "I didn't do it because I was afraid I'd mess up the evidence. I would never have initialed it, like I wouldn't have initialed the cigarette match device either. I wouldn't have put any mark on them."

  Hanly asked if he'd initialed and dated anything, and the witness informed the jury of the protocol: he'd initialed and dated the evidence envelope, not the evidence inside it.

  When he was asked if he'd taken photos at the store of the entire device, he said that he had not. When asked why, he responded, "Well, at the time I was dealing with just a fifty-dollar loss of some dry floral arrangements, and I didn't feel it necessary to take photographs. I had conducted what I considered to be a thorough investigation, so I felt like that was enough."

  The irony was not lost on those familiar with the convoluted Pillow Pyro investigation. The seemingly insignificant arson attempt might become the key to unlock all of it-from the Ole's catastrophe through the astonishing arson series in retail stores through the College Hills fire where sixty-six homes were burned-all of it.

  The first questions that Douglas McCann had for Marvin Casey concerned Casey's decision not to photograph the intact incendiary device when and where it was found at the fire scene, rather than back at the office.

  McCann said, "So there's not one document anywhere that will tell us that this yellow piece of paper existed on January sixteenth, 1987. There's no document anywhere that will tell us that, is there?"

  "No," Casey answered.

  "And this report was made on the date of the fire?"

  "Yes."

  "You ever heard of the term 'chain of custody'?"

  "Yes," Casey answered, with that blue-eyed Panhandle squint that said: You are pissing me off, boy!

  There followed a series of short questions about missing links in the chain of custody, dealing with absent evidence envelopes and how some investigators had initialed the yellow notepaper, and the fact that it had only been signed by Casey in September 1991, when the government was putting together its case for the search warrant.

  McCann said, "You didn't want to disturb anything on that yellow paper. That's why you didn't put a little pencil mark-'one-sixteen-eighty-seven'-is that what you are saying?"

  "That's correct," Casey answered.

  Then, after trying to indicat
e that the packaging, forwarding, unpackaging, and examining of the yellow notebook paper was sloppy if not suspicious, McCann said, "You have testified that you are an expert in cause and origin?"

  "Yes," Casey answered.

  "In fact, have you attended classes that John Orr instructed?"

  "That's correct," Casey answered.

  Questions continued coming fast, and not for the last time, the court reporter had to ask McCann to slow down his hyperkinetic delivery. The thrust of the questions was designed to persuade the jury that the piece of notebook paper in the courtroom was not the paper that Casey had found, especially because the paper had been torn into two pieces.

  Nothing had been implied as yet about Casey being part of a conspiracy. At this juncture, the defense was hinting at careless collection and marking of evidence, and that Casey was there in court identifying a piece of paper that the government told him was the paper he'd collected in 1987, but that he really had no idea if it was or was not.

  On the second day of the Fresno trial a Los Angeles Times news story was headlined: FIRE CAPTAIN CALLS ARSON TRIAL A CONSPIRACY.

  As his trial opened in U. S. District Court, Glendale Fire Capt. John Orr defiantly charged that the government's case linking him to five Central Valley arsons in January, 1987, is a conspiracy of lies to railroad an innocent man.

  "Have you seen the movie 'JFK'?" he asked The Times during a break in the opening arguments Tuesday. "They went down to the morgue and placed Oswald's hand on the butt of that rifle . . . The only difference is that my hand wasn't cold."

  Well, that approach was guaranteed to draw a crowd in the court of public opinion, and it resulted in an inordinate amount of coverage in the print and electronic media. In 1992 the public's appetite for government conspiracy and police malfeasance already had been whetted, not just by the film JFK, but by the Rodney King beating and other high-profile cases.

  John Orr didn't think that his thirty-two-year-old lawyer was old enough, smart enough, or even graceful enough. John Orr complained that his lawyer had tripped over his own briefcase three times while he was "flitting" around the courtroom. He thought McCann's machine-gun oratory was off-putting to the conservative folks of Fresno. And he deeply resented that his defense was costing him and Wanda forty thousand dollars.

  But for all that, he had a lawyer with enormous intensity and belief in his client, and the fee was far less than many would have charged for such a difficult, time-consuming case. Douglas McCann had a good sense of humor, which his client was in no mood to appreciate, and his youthful high-wire style in the courtroom, with hair flying and eyes blazing-and the court reporter pleading for him to slow down-wasn't all bad, given what he was up against. The creation of reasonable doubt in the government's evidence was his only option. A phlegmatic approach when one is making an extravagant allegation against the U. S. government might not have carried the emotional appeal necessary. He needed, as it were, fire in his presentation.

  Not the first to use the game of baseball in portraying his feelings about the crux of the case, McCann said, "Ordinarily, there's no defense against a fingerprint. It'll knock you right out of the box."

  The defense was obliged to confront a former clerk from Hancock Fabrics in Bakersfield who had, in 1987, given a description that was very close to John Orr's at the time, and she related how she'd smelled cigarette smoke but that the suspect did not have a cigarette in his hand when she'd seen him. And she described how she'd picked John Orr out of a photo lineup. The defense did a good job with a good witness, and before she left the stand she admitted that she was only "seventy percent" certain that the defendant was the man she'd seen in the store.

  The next witness called was Clive T. Barnum, the crusty fingerprint expert for ATF who'd been doing his job for thirty-five years. Barnum testified as to how he'd processed the piece of notebook paper that had been forwarded to his lab by Marvin Casey in 1987, and that the latent print that popped out of the ninhydrin solution was a very clear one that even a layman could read. The exchange between defense counsel and the grizzled lawman perked up the press a bit.

  "Was it a pretty obvious make?" McCann asked Barnum, referring to the match.

  "Well, I certainly think thirteen is a considerable number of points," Barnum answered, referring to the fingerprint points of comparison.

  "If you were comparing an exemplar to a latent and there were seven points, you would make a note of it, correct?"

  "Make a note of it how?"

  "Would there be a number less than seven that you wouldn't draw a conclusion at?"

  "There's no certain number you need for a positive identification of fingerprints," Barnum said.

  "Even if there were only three points that matched?"

  "I would have to see the print. I would have to examine it."

  "Because it's more than just the points?"

  "I know where you're going," Barnum said. "I know where you're going. I'd have to see the print."

  "I don't think you're qualified as a psychic yet," McCann countered.

  "Well, I know where you're going," Barnum repeated.

  "Well, where am I going?" McCann challenged.

  "You're going to start to count down."

  "Actually, you don't know where I'm going. Where I'm going is, I'd like to know if you had five or six points of comparison, in some situations you'd draw a conclusion that there was a match, isn't that true?"

  Not buying into hypotheticals, the crafty old fingerprint expert said, "I'd have to see the print."

  When McCann asked how long a latent fingerprint could remain on a piece of paper, Barnum answered, "Forty years, under laser enhancement."

  Carl Faller's next witness was Jerry Taylor, an explosives-enforcement officer for ATF who testified to M. O., crucial in linking this fire series as well as establishing a foundation for a future prosecution of the Los Angeles series. After lengthy testimony about incendiary delay devices, including how and where they were placed and in what sort of retail stores, Faller asked, "Now, based upon your training and experience, did you come to the conclusion as to whether the fires were started by the same individual?"

  The witness replied, "Those fires were not only started by the same individual, but the same individual built the devices."

  The last and most important witness of the day was Michael Matassa, and Doug McCann had to do his damage now if he had any chance of suggesting a government frame-up.

  After being sworn, Mike Matassa informed the jury that he was the case agent in the matter at hand, and like almost every other law-enforcement witness, he said he'd been personally acquainted with the defendant for several years.

  The first question from Pat Hanly seemed innocent enough, but it would prompt a lot of cross-examination. The prosecutor asked: "Now, could you please tell the ladies and gentlemen of the jury, when did Mr. Orr first become a suspect in this case?"

  Mike Matassa answered, "April seventeenth, 1991."

  "And why on that date?" Hanly asked.

  "Because of a positive comparison by the Los Angeles Sheriff's Department between the known print of John Orr and a latent print that was recovered from the CraftMart device."

  "Have you had an opportunity to review the manuscript Points of Origin?"

  "Yes, I have."

  "Now, how many different versions of the manuscript have you read?"

  "Two."

  "What is the difference?"

  "Primarily, one version is shorter, and in that version the incendiary device consists of a match attached to a cigarette. In the second version, the incendiary device consists of a glob of glue attached to a cigarette."

  "When did you become aware of the existence of the manuscript?"

  "Late June or July of 1991."

  "And how did that happen?"

  "We became aware of that from Fire Marshal Chris Gray of the Glendale Fire Department."

  The prosecutor then asked the witness to generally describe the st
ory line, and Mike Matassa talked about Aaron Stiles, the arsonist, and how he travels to Fresno and sets fires in fabric stores, and also in Tulare and Bakersfield, always in foam products, using a delay device.

  Then Hanly asked, "Is there any discussion in the book about what would happen if the arsonist knew that the information about the fires was being disseminated to law-enforcement agencies?"

  The witness answered, "Yes, that he would then cease starting the fires."

  "Is there any mention in the book about fires and their relationship to Fresno?"

  "Yes, that they are always started close to the freeway."

  Hanly then asked the witness to examine what Matassa called "the shorter version" of the manuscript, which was actually the first three chapters.

  "When did you first become aware of this shorter version?" the prosecutor asked.

  "December fourth, 1991," Matassa replied, indicating the day of arrest.

  The witness described the material found at the time of the defendant's arrest, including the photos of the tracking device, paper bags, cigarettes, matches, rubber bands, and lighters. Then came questions about the interview of the prisoner at the police station.

  "How would you characterize the defendant's attitude during the interview?" the prosecutor asked.

  "It was a cat-and-mouse game. He was probing, trying to see how much information we had, how much evidence we had on him."

  Of course, the defense objected to Matassa's conclusion, and the court sustained it. But Hanly wanted to stay with it and tried to lay a foundation that would permit Matassa to characterize the prisoner's responses.

  Matassa told the jury that he'd conducted hundreds of interviews, and Hanly asked, "In fact, have you attended classes with the defendant on that subject?"

  "Yes," the witness replied.

  "And in those classes, did you go over how to interview witnesses?"

  "Yes, we did."