When Ed Rucker took over he established that most of the physical overseeing of the actual work had been done not by the witness but by his foreman. And he also elicited a statement by the witness that the business had gone bankrupt. The reason became clear when Rucker asked the witness if he’d settled the huge lawsuit with the plaintiffs, hinting at culpability.
The witness was asked about track lighting, and the lighting fixtures in the display canopy, and he admitted that there were some breakers in the store that were not holding their capacity and had tripped from time to time, requiring service calls. His people had spoken to the store employees about taking more care with their light displays, so that too many fixtures were not put up.
On redirect, Cabral asked a question that got a nod from most nonlawyers in the courtroom: “Mr. Holmes, if you know, did everyone who had anything to do with any of the remodeling or construction at this Ole’s Home Center get sued?”
The witness replied, “I believe everyone did, yes.”
“No matter what they did at the site?”
“I believe so.”
Cabral asked the witness to repeat that the main service for Ole’s had been a sixteen-hundred-amp service, twice what the store had been using, and had been extremely adequate.
All of the television media, composed of people with the attention span of sand fleas, had fled halfway through the testimony. In fact, most of the gallery, except for the die-hard rail birds, had also hauled ass. Thus far, the trial was so technical that even the Fire Monster might have keeled over from fatigue.
17
REDACTIONS
The time had come to expect another law-enforcement witness to fall on his sword. Jack L. Palmer was called to the stand.
The witness testified that he’d been a sergeant on the Los Angeles County Sheriff’s Department assigned to the Arson/Explosives Detail, with twenty-five years of service at the time of the Ole’s investigation, and he’d retired three years later. John Orr said that Jack Palmer looked like every other retiree from the sheriff’s department that he’d ever met, a beefy, mustachioed old cop, but this one had little of the customary swagger, not on this day.
Jack Palmer listed his qualifications, among them that he’d investigated five thousand fires in his career, and then Cabral took him directly to October 11 at 10:30 in the morning.
Cabral placed the diagram of Ole’s on the board for the witness to study, and asked him to make marks with a laser pen. Palmer testified that in 1984 he’d drawn his conclusions about how the fire had vented by looking at heat patterns on the exterior walls where the ceiling had caved in. He talked about the steel girders having twisted due to that intense heat, and that he’d thought the hot spot was in the south end of the structure.
After considerable questioning, Cabral asked, “Did you ever determine from talking with employees where the polyfoam was stored?”
The witness answered, “No one ever told me there was any polyfoam anywhere.”
“And would that have been significant?” Cabral asked.
“Yes,” the witness answered, “it certainly would have. Because polyfoam, once it gets in an open flame, goes like wildfire.”
Cabral asked, “Now, Sergeant Palmer, how long did you spend at the location before you made your determination?”
“My first determination, I was probably there about an hour, hour and a half.”
“And what determination did you reach?”
“That I was unable to eliminate electrical shorting in the attic area.”
“And that was because the attic area was gone?”
“Yes. What was very very very hard in reading a fire like this is because you have so much of a fuel load in there. So we had secondary fires. When you get overhead burning, materials fall down and start another fire. So you have numerous hot spots depending upon what your fuel load is.”
The witness testified that he’d interviewed the first-in fire captain, William Eisele, and “a couple of employees,” including James Obdam, who had barely gotten out alive.
And then the prosecutor mentioned the names of other employees whom Jack Palmer had not interviewed, and Cabral repeated what Anthony Colantuano had seen, the fire boiling from the racks toward the center of the store. And how the fire had exploded out the door behind the fleeing employee.
Jack Palmer said, “I never heard any statements like that.”
“Okay, would it be significant to your conclusions?” Cabral asked.
“Sure it would,” the witness said. “I had a high fire. We dug that area out completely and we could not find evidence of a low fire in there.”
“By low fire, what do you mean?” Cabral asked. “If the fire started two to three feet off the floor, you wouldn’t necessarily have been looking for that?”
“No,” Palmer answered. “Unless I had a pattern of fire-sets like that.”
Then Cabral took the tack that everyone was waiting for. “You were aware on that night that there were two other fires in the area, and they were both arson fires. Is that correct?”
“Yes, they advised me of those,” the witness admitted. “Those fires they told me were in stores, grocery stores. And were set in potato-chip racks, open flame to potato-chip bags. I mean, I don’t … I considered the information, but as an investigator, I know what evidence I need. I know when I testify I have to be sure in my mind that I have eliminated all accidental sources.”
The Bulldog kept chewing away at the witness’s pride, little bites at a time: “Now, if there had been additional information that in fact there was a history of fires involving potato-chip racks, and polyfoam, and a particular device, would that have affected your opinion and your evaluation of this fire scene?”
“Yes, had I known there was polyfoam in that area,” the witness said, partially agreeing.
“And during the course of your time there, were there a lot of investigators there?”
“Yes, there were.”
“If any of those investigators were familiar with this pattern that was occurring, would you have expected them to talk to you about it?”
“I certainly would.”
Cabral was speaking of the defendant when he asked, “And did anyone talk to you about any pattern of fires or anything like that concerning the two other fires?”
“They did not.”
Again referring to the defendant, the prosecutor asked, “And did anyone tell you that they had any information that led them to believe that this was an arson fire started in the polyfoam, using a specific device?”
“No, sir, they didn’t.”
“And would you expect an arson investigator to explain that information to you?”
“Yes, I would.”
“I have no further questions,” Cabral said.
Ed Rucker asked questions to point out that Palmer had had five other members of the LASD arson unit with him at Ole’s that morning, as well as numerous other arson investigators. And that nobody had expressed vocal disagreement with Palmer.
Rucker made the witness repeat that what he’d seen at the site led him to believe that it was a high fire that had burned down and started a secondary fire on the floor, and that Jim Obdam had told Palmer that a couple of days before the fire the lights had gone off.
Rucker asked, “And has it been your experience that electrical shorts can result in ignition of material?”
“It certainly can,” the witness said.
Rucker asked, “Did the fact that there were other fuel loads on the floor where the secondary fire fell down … that’s not going to change what you saw as those fire indicators, is it? Those burn patterns up above the ceiling level?”
“If I had a set fire with a petroleum product, it would cause a rapid fire. There would’ve been the same result.”
“And you can’t draw a distinction on what you saw between the two interpretations of what happened? Both seem reasonable?”
“Both are reasonable.”
�
�Has anything you’ve learned since then brought you to change your conclusion?”
“Not anything that I’ve learned since then, no.” Then he hedged, “I understand, you know, the facts of the case. But I … if you want to give me a hypothetical, I would say, if I knew a fire was set in that foam, then that is my rapid fire. That is my source. But when I read the fire fourteen years ago, I did not eliminate the electrical.”
When Cabral got his witness on redirect, he had to take him on. He said, “Were you aware that Investigator Jim Allen felt that he was kept out of the scene for some period of time by the lieutenant from the homicide division?”
“A couple of the other team members had said, you know, that he was complaining about that,” the witness replied.
And one more time the balkanization of American law enforcement was demonstrated. Palmer had never been told by anybody from the other agencies about the potato-chip file, not by anyone, including the defendant. Nobody had talked about market fires as possibly being diversionary arsons. Nor was Palmer ever told anything about the prior polyfoam fires, nor that Builder’s Emporium in North Hollywood had experienced such a fire. Everyone kept everything to himself. And nobody had seemed willing to dispute the Lean Green Machine.
When the witness left the stand, observers would have to say that he hadn’t significantly helped either side. The case was not going to be decided by Sergeant Jack Palmer’s testimony. He had refused to fall on his sword for the D.A. In fact, all he’d been willing to accept was a paper cut.
The next witness, Marc Lewis, a former lumber salesman for Ole’s, testified to the stunning speed and agility of the fire, leaping across display racks.
Then the lucky young man said, “As I was leaving, I heard the fire door starting to go down. I saw a guy come out this other door, and then flames came flying out after him!”
On cross-examination, Ed Rucker worked at finding out from where the fire had emanated, and the witness said he’d seen it coming from a rack of welcome mats, both woven and plastic, not from the polyfoam racks, possibly indicating a secondary fire.
Then Mike Cabral called one of his task-force members, Rich Edwards, who testified that he’d been with LASD for twenty-six years, but when the Ole’s fire had occurred, he was a new kid on the block as far as arson investigation was concerned. He said that he was the only investigator who’d been present on the scene in 1984 and had also had the opportunity to examine all of the later task-force information.
“And based on all of this information,” Cabral asked, “do you have an opinion as to the cause and origin of this fire?”
“The fire was incendiary, or arson,” Edwards said. “And the fire started in highly combustible merchandise that was stored adjacent to the southeast corner of the aisles.”
When Ed Rucker got the witness, he made sure that the jury understood that Edwards’s opinion was based on information he’d gathered since the task force was formed in 1992, eight years after the Ole’s fire. But Edwards was the first sheriff’s department investigator to testify that he’d heard Investigator Jim Allen complaining that he wasn’t being given enough time at Ole’s to conduct his investigation.
Edwards gave an astonishing statistic: since the task force was formed, they’d secured reports on twenty thousand fires to see if they fit the M.O. And moments later, much to the surprise of everyone, Cabral rested his Ole’s case insofar as prosecution witnesses being called to testify.
Eleven days after the start of trial, Sandra Flannery took over her part of the prosecution of John Orr, and began calling witnesses to the College Hills fire. Her first witness was a retired U.S. Air Force major.
She asked, “On June twenty-seventh, 1990, did you have an occasion to drive into the city of Glendale?”
The witness testified that he was driving on Verdugo Road near Glendale College at about 3:30 P.M. when he saw that the hillside was in flames. He’d decided to stop his car to alert people in a nearby apartment building that they were in danger. When he’d slowed to stop he’d seen a man outside the building talking to a woman.
In response to the prosecutor, the witness said he’d seen a pickup truck parked nearby, and that after the man stopped talking to the tenant, “He stopped and looked, and he just momentarily stared at me with a kind of a shocked look.”
The witness then had decided that the tenants had been alerted by the man, so he’d driven to the nearest gas station to make a 911 call.
Sandra Flannery asked, “At some later date, did you have an occasion to see any photographs of that man you saw?”
“One evening on the news there was a flash of an individual who was supposedly involved in an arson case, and all of a sudden I just told my wife, I said, ‘That was him. The gentleman we saw at the Glendale fire.’”
Flannery asked, “What was it that caused you to recognize the man in the photograph as the man you saw on the landing by the fire?”
The witness answered, “When I see something that is very unusual and it happens to go in my memory bank, I don’t realize it. Later on when I recognize something, it just pops out. It ties back and I say, that’s him.”
The witness testified that at the grand jury he’d been shown a photo six-pak, and chose the photo of John Orr. But of course, that was after the face had been fixed by TV coverage. Then he identified the defendant seated in court, allowing for the fact that the defendant had aged and gained weight.
“I am a retired air force pilot,” the witness explained. “And in the training of air force pilots you make momentary or split-second memories of items that you see. And that was carried throughout my air force career. At times I would be behind the Iron Curtain, and I would be required to identify an individual or look at an individual. And then when I would be returning, I would have to identify who they were or try to tie them back to some kind of a photograph.”
When the witness was handed over, Peter Giannini asked several questions to establish where the witness had been in relation to the fire and the apartment building, and more important, that he’d seen no other cars on the street except for the pickup truck. It was helpful to the defense because John Orr drove a white Chevrolet Blazer.
When Giannini got to questions about the witness’s extraordinary memory, the witness said, “I was both qualified in photographic intelligence, and learned how to recognize various things in hundredths of a second. I should tell you I have a photographic mind, so something that is important automatically clicks.”
Glendale fire captain Greg Jones took the stand and testified that he’d seen the defendant uphill from them when they’d arrived, and he’d found it “a bit strange” because he couldn’t understand how John Orr had got his car there without passing the fire engine, implying that he must have been at the area of origin before anyone else had arrived.
The witness told how he’d asked the defendant to take a hose to a house that was threatened, but that John Orr “was agitated and didn’t seem in control of what he was doing.” He related how the defendant had just tossed “a salvage cover” over a couch and left the scene, while firefighters were fighting a blaze that was threatening the house itself.
Moses Gomez, of the state Fire Marshal’s Office, told of his peculiar and aimless drive around the fire scene that night with the defendant in his white Blazer, and of John Orr showing him a cigarette-lighter incendiary device that he’d stored in a vial. He described a strange press conference where the defendant told the media everything about the device, thereby destroying its confidential value to investigators if an actual suspect was found.
Giannini’s cross-examination sought to show that John Orr’s behavior during the press conference when he’d told about the incendiary device was not detrimental to a later investigation, and that he’d been asked by his boss to make a statement to the press.
The witness testified that two months after the fire, at a round-table meeting of arson investigators, John Orr had informed the group that he was no longe
r sure of the cause of the College Hills fire because subsequently he’d found additional disposable lighters in the area.
The questioning intensified after the witness expressed an opinion that the College Hills fire was incendiary in nature.
Giannini said, “I’m confused. Are you calling this an arson now?”
“If I’m allowed to explain,” the witness said.
“Well, no. Just answer my question. Are you calling it an arson?”
“Yes, I am.”
“So that’s different than what you said before?”
“Yes.”
“You’re changing your opinion as you’re sitting here talking?”
“I’m changing my opinion based on the questions that are posed to me to explain how I did things on that particular afternoon.”
“Well, let me ask you, did you eliminate all possible accidental causes?”
“Based upon where I was, no.”
“It might have been an accidental fire, isn’t that right?”
“That’s correct.”
“So how can you call it an arson?”
The witness tried to say that his opinion on this day in court was based on information he’d later received that he thought was credible.
The judge interjected, “And in your brief reviewing of the scene, you didn’t see anything to contradict that. Is that what you’re saying?”
“That’s correct,” the witness said, probably grateful that the judge was testifying for him.
“All right,” Judge Perry said. “Because you didn’t investigate as thoroughly as you would’ve had it been your responsibility to do the investigation?”
“That’s correct, Your Honor,” the witness said.
“I think we’ve covered it,” said Judge Perry.
John Orr reported later that he saw the judge as a witness for the prosecution.
One of John Orr’s associates was his former partner Don Yeager, who had retired after twenty-seven years with the Glendale Fire Department. When Yeager was called to the stand he testified that when he’d arrived the day after the fire he’d found his partner at the command post appearing “tired and haggard.”
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