Fire Lover (2002) Page 20

  "Go ahead."

  "When I was asked at that time, I felt that the question was, had I ever gone into John's bag. The answer is no, I had never gone into John's bag on my own. After that I was trying to remember. I couldn't remember the specific times or the consequences if I ever had gone into the bag. And I recalled that there were several instances when it happened. At that time, I called up Stefan Stein from the U. S. Attorney's Office and told him yes, I do remember being in John's bag several times. And I also called up Douglas McCann and relayed the same information to him."

  "But on December tenth, 1991, when you were asked point-blank under oath, 'Have you ever looked inside that briefcase?' you said, 'No, I have not.' Is that true?"

  "That's true."

  "But then after that was over, you had a sudden epiphany and realized, 'Oh, my gosh! I have looked in that bag before!' Even though you were asked twice and said 'No,' twice, under oath. Is that correct?"

  "Yes."

  "And do you think your testimony today is influenced in any way by your relationship with the defendant?"

  "No, I don't."

  "You are a close friend of his, is that correct?"

  "I'm a friend of John's, yes."

  "Have you ever undertaken any efforts whatsoever since his arrest to assist him in his defense?"

  "No, I'm not part of John's defense team at all."

  "No, but I mean have you done anything, provided funds or anything?"

  "I provided funds to the John Orr family, to John Orr and his wife, for food, yes."

  "Did he ever tell you that he considered himself a suspect at one point in the investigation?"

  "Not that I can recall."

  "Now, are you aware of any investigation regarding a firefighter who is also suspected of being a serial arsonist?"

  "No."

  "You would take steps, would you not, to investigate this firefighter/serial arsonist?"

  "Yes, I would."

  "If you found yourself to be in a situation where you were a suspect in an arson investigation, Joe Lopez, would you contact somebody to find out what was going on?"

  "Yes, I would."

  "If you found a transmitter on the bottom of your car and believed that you were a suspect, and you had been contacted by ATF on two previous occasions about arson fires, would you then call ATF?"

  "Not necessarily."

  "That wouldn't cross your mind?"

  "Well, we have contact with a lot of various agencies, and we might have contact with L. A. City, L. A. County, or ATF during that time period too."

  "Sorry, you must have misunderstood me," Hanly said. "You are being followed. You have a tracking device on your car. And you find out that the frequency number and the PIN number belongs to ATF. And you were previously contacted by two ATF agents, one of whom just happened to leave his card. Are you going to contact ATF, and ask why his tracking device is on your car?"

  "Most likely. Yes," the witness said.

  Chapter 13

  VERDICT

  Ironically, Douglas McCann was late for court on day five, delayed for three hours because of a fire on the freeway. And it had not been set by the defendant.

  The first issue was facial hair. The time had arrived for the defense to introduce evidence that the defendant had a full beard in January 1987, and could not possibly have been the person with the "Don Johnson" stubble whom witnesses had chosen from the task-force mug shots. The defense had photos to prove their contention, in an album that the prosecution had not seen.

  Hanly said to the judge, "I think the problem here is the fact that, mysteriously, a photograph shows up in this scrapbook which just happens to have 'one-seventeen-eighty-seven' written on it. It seems a little strange that all of a sudden this photograph would come up, not having been received in discovery, and just happened to have been taken the day after the January sixteenth, 1987, fires."

  But prior to the appearance of Wanda Orr to testify about the photos, the defense called Conway Lu, the former employee of CraftMart in Bakersfield, where the crucial fingerprint evidence had been found. Referring to arson investigator Marvin Casey, the witness said, "The guy came in and was digging around and he says, 'Well here it is.' "

  "Then what happened?" McCann asked.

  "I said, 'What did you find?' And he pulled out a book of matches, a cigarette butt, and some burnt paper."

  "Was he then talking to you and showing you what he'd found?"

  "He explained how it worked because I asked him."

  "You said some burnt paper. What color was it?"

  "Yellow, if I recall."

  "Did he show you the cigarette?"

  "It was a cigarette butt that had been scorched."

  "And he showed you a matchbook?"

  "Yes."

  "In terms of the yellow paper, was it one piece or two pieces?"

  "It was two pieces that were . . . well, that looked like they should've been one piece at one time."

  "But it was in two pieces?"

  "Yeah."

  This witness was perhaps the last and best hope to perpetuate the idea of a government frame-up. Marvin Casey had testified that the notebook paper was in one piece when he'd found it, and two pieces when it came back from the lab after processing. And he'd said nothing about a matchbook, which ran counter to the government's description of an unusual signature device.

  Hanly's cross-examination went to the crux of the testimony: "You said that the Bakersfield fireman showed you the actual device, is that correct?"

  "He kind of explained how it worked."

  "And he showed you some yellow lined paper?"

  "Some paper, a book of matches, a cigarette butt."

  "Was it a book of matches or was it just individual matches and a cigarette butt?"

  "If I recall, it was a book of matches."

  "But are you sure about that?"

  "It's been five years. It's hard to say."

  Hanly then showed the witness Marvin Casey's photo of the incendiary evidence he'd recovered.

  "Does that look like the paper you were shown on the date of the fire?"

  "It's hard for me to say. It's been five years. It could be."

  "So that could be the paper you saw on the day of the fire. Is that correct?"

  "It could be."

  "That's all I have, Your Honor," Hanly said.

  Doug McCann tried to rehabilitate his witness with a series of short questions as to what he did recall.

  "Do you recall there were dried flowers in the area?"

  "Yes."

  "Do you recall the name of the person who yelled out, 'Fire'?"

  "Yes."

  "There's a lot you recall about this, correct?"

  "True."

  "A lot of detail. In fact, you said you recalled a matchbook?"

  "I seem to remember a matchbook, yes," the witness said.

  It was time for the beard. Wanda Orr, the fourth wife of the defendant, took the stand. She was a petite woman, a few years older than John, an ethnic Hawaiian mix of Chinese and haole, soft spoken, wearing little makeup.

  McCann's first question was, "Mrs. Orr, do you remember the date that you were married to John Orr?"

  "November twenty-first, 1986," she replied.

  And then McCann showed Wanda Orr the wedding photo of John with a beard, and asked, "Did you go on a honeymoon?"

  "Yes, we did," she said.

  McCann also showed a photo taken in December of that year, and the beard was there.

  There was a sidebar with argument about a date written on the back of the crucial bearded photo, really about when the date was put there, the date being January 17, 1987, one day after the CraftMart fire.

  When they got back to the witness, McCann asked, "What do you recognize about that photograph?"

  "John, the house, the furniture on the lawn. We were having a garage sale."

  "When was that?"

  "I believe it was on the seventeenth."

&n
bsp; "How is it that you remember it was January seventeenth?"

  "This is from my album. I always date everything that goes into the album."

  When it was time for cross-examination, Carl Faller took over: "Now, Mrs. Orr, do you recall specifically that the garage sale was on January seventeenth, 1987?"

  "Yes, sir."

  "How is it that you recall that?"

  "Because the album states that."

  "Right. But do you remember?"

  "I remember the garage sale, yes."

  "Well, do you remember the date?"

  "It was a long time ago."

  "I agree. So the only reason you are saying it's January seventeenth, '87, is because that was the date written in the album. Is that correct?"

  "That's correct."

  Then Faller carefully suggested that somebody had removed the photo from the album in order to add a date that would alibi the defendant: "Now, this particular photograph was taped into the album. Around the edges of the photograph, it appears that at one time it was glued into the album. Would you agree that there is residue of glue on the back around the edges?"

  "Appears to be, yes," she said.

  "Would it indicate that at one time it had been glued into the album, then removed and taped in the album?"

  "No."

  "Well, you wouldn't put both glue and tape on at the same time, would you?"

  "No."

  "How long did he have the beard after you were married?"

  "I would just guess maybe February . . ."

  McCann interrupted to say, "I don't want her to guess, Your Honor."

  Faller said, "Well, he may not want her to, but she can give her best estimate of what she recalls."

  "You may give your best estimate, Mrs. Orr," the judge said.

  "February, March," she said. "I'm just guessing."

  About the facial hair, the government called a woman as a rebuttal witness who allegedly had had dinner at the 1987 conference with John Orr during a time when he was "happily" married. Apparently, neither the government nor the defense cared to get into details of their evening together.

  The rebuttal witness was a claims adjustor for a major insurance company. The questions to her were very brief and to the point.

  "Have you had occasion to go to conferences concerning the subject of arson?" Carl Faller asked.

  "I have actually only gone to one seminar," she replied.

  "When was that?"

  "It was in January 1987."

  "Where did that take place?"

  "In Fresno," she said.

  "And while you were at that conference in January 1987, did you see the defendant, John Orr?"

  "Yes."

  "And when you saw the defendant Orr at the conference, did he have a full beard?"

  "No," she replied.

  "Thank you. No further questions," Faller said.

  The judge said, "Mr. McCann?"

  "No questions, Your Honor," said Doug McCann.

  At 1:00 p. M. on the fifth day, the government addressed the jury with a closing argument. Patrick Hanly began his summation by reminding the jury that the defense agreed in opening statement that one person started all five fires: the two in Fresno on January 15, 1987, the one in Tulare on the sixteenth, and two in Bakersfield, also on the sixteenth.

  It didn't take the prosecutor long to get into the defendant's manuscript, wherein his fictional arsonist started fires in a fabrics store that he called "Fabric Plus." Hanly also reminded the jury that in the novel there was a line which read, "Most of the fires started just off of the freeway," as did the actual fires.

  Hanly described how the fire at the House of Fabrics fit the scenario of the fictional fabric store in the novel, and he reminded the jury that the defendant had checked out of his hotel at 6:51 a. M. on the last day of the seminar, and had all day to cruise down the freeway setting fires. With each and every point he made, Patrick Hanly would point to blowups of the text from Points of Origin, emphasizing again and again that the book was really not a novel but a diary.

  As to the alleged conspiracy, he said, "There is no evidence whatsoever that the government had the manuscript before the fingerprint was identified. The defense has tried to paint a picture of how the government got the manuscript, and then magically, the defendant's fingerprint was discovered on the yellow piece of paper. Well, quite simply, that is not true."

  Referring to the fingerprint expert from the Los Angeles County Sheriff's Department who had made the identification, he reminded them that the expert didn't know John Orr, didn't know he was writing a book, didn't know he was a fireman, didn't know anything about the case. The letters were summarized, and it appeared that they carried more weight with prosecutors than did the manuscript itself.

  Some observers thought that more damaging than the letters was the testimony about the tracking device. Hanly said, "So at some point John Orr knows he's a suspect. Does he go to the police? Does he contact his superiors?

  "If you recall Agent Matassa's testimony as he reread the manuscript, there was a passage about how, if the arsonist knew the government was on to him, the fires would stop. And guess what? After March twenty-ninth, 1991, they stopped."

  The defense got its chance at 2:20 p. M., after a short recess.

  "Good afternoon," defense counsel began. "As you are aware, the government gets two shots at closing argument. They will be able to respond to whatever I have to say here, and there are a couple of reasons for that. The court will tell you that the government bears the burden of proving the case beyond a reasonable doubt. And the fact that they argue twice, that's simply our system."

  When he discussed his theory that the book manuscript was in the hands of the task force prior to the alleged fingerprint match, he said, "Why is Matassa so adamant that this guy was not a suspect until April seventeenth, 1991? It's obvious, because a week before that they have his photos in the lineup." That, in reference to Ken Croke transposing dates on his photo spreads.

  "How do we know if they had the manuscript or not? Guess what? In whatever month, it happened after the fingerprint match, according to their version."

  It is possible that the defense lawyer's fervor and machine-gun oratory covered up some of the confusing syntax as to the fingerprint itself: "Because Casey comes in here and on direct testimony, talking about the yellow paper, he's looking over at the jury saying, 'I remember this. I remember that.' And I asked him some tough questions like 'Hey, there's no documentation.' He doesn't look over here. There is not documentation. Why should we say, 'Casey, you told us the truth'? Because you happen to work for the fire department?

  Because you happen to look like a guy who may tell the truth?"

  He went on for a while about the framers of the Constitution, and the jury system, and how the witness Conway Lu told him that the yellow notebook paper looked different from what was presented in court.

  And then he said, "Some yellow paper was found. This is what the government presents us, this came from that fire. Now, hold it a minute there. This thing is burnt. It looks like it came from a fire. The government can say defense counsel has not proved to you that there was a conspiracy, or that someone switched the paper. Hey, that's not our burden. It's their burden to slam-dunk it. You have the right to question if what they are telling you is true. Remember, this isn't Perry Mason. I didn't bring in the arsonist. That's not going to happen. It's not up to the defendant to bring in the actual guy."

  Doug McCann portrayed the witnesses who were shown photo lineups as being uncertain or wrong, and he criticized Matassa for not showing the dissimilarities in the book manuscript along with the similarities.

  As he was winding down, he returned to the fingerprint: "Total unreliability as to Casey. The guy was putting John Orr on his resume. Are we going to believe Casey because he's a fire captain and we are not going to believe Conway Lu? Conway Lu is telling us that the paper is entirely different from what he saw. Conway Lu tells us that there
were two pieces, not one piece. Casey said there was definitely one piece."

  About the fingerprint expert, Richard Kinney, he said, "Kinney's conclusion in '89 was that there were negative results. That means a finding that the print was not the defendant's. . . . The bottom line is, the only natural conclusion is, he was not looking at the same latent print, because the positive match contained thirteen identifiable points at least. It was an obvious match. This taints the chain of custody again, because in the middle of all that, a guy is looking at a thing over a two-year period, and was looking at different things.

  "The only natural conclusion is, he wasn't mistaken in 1989. He was looking at a latent print that wasn't John Orr's and he came to a conclusion that it wasn't John Orr's. He's in the same government that all these guys in suits are in.

  "I'm just about finished here. The parties have agreed to certain facts that have been stated to you. . . . The government believes a man was seen at a fire scene by their witness. Defense counsel believes him. He saw the actual arsonist who was in his mid-twenties. How can you possibly say yes beyond a reasonable doubt when they are describing him in his mid-twenties? How can you say it's John Orr when the man was in his mid-twenties and he had jet-black hair? That's reasonable doubt as to Family Bargain Center, but also CraftMart. That's reasonable doubt as to all of the charges. Thank you very much."

  Assistant U. S. Attorney Carl Faller wasted no time in closing arguments. He stood and said, "There's an old saying that's been around the courtrooms a lot longer than I have been, that says when the facts are against me, I argue the law. When the law is against me, I argue the facts. When they are both against me, I kind of stand up and scream like hell and then I put the prosecution on trial. I put the policemen on trial. I put the government on trial, trying to deflect attention from the evidence."

  The prosecutor went point by point through Douglas McCann's closing argument, and then addressed the fingerprint evidence: "If it were a perfect world, this case should have been over in 1989, there's no doubt about that. The defendant should have been convicted three years ago, but he wasn't because Dick Kinney made a mistake."

  When he got to the black bag seized on the day of arrest, Faller said, "Now, the idea, I suppose, is that the defense wants you to think that these items were here because the defendant was using them in training other firefighters, and there was some talk about one session that Joe Lopez went to where he was requested by the defendant to construct a device for one training session. Well, when you start to look at what's in here and start to realize how many packs of cigarettes this non-smoker had, he must've been going to train every firefighter in Los Angeles."