Fire Lover

by Joseph Wambaugh

  Rucker said, “Do you remember a person you walked by at a supermarket last week? How about the person that walked by you a month ago? A year ago? Two years ago?”

  He reminded the jury that she had been with her husband at the grand jury where he was to testify to an entirely different aspect of the case, when she’d suddenly “volunteered” to tell the grand jury of having seen John Orr those many years ago, on the night before the fire.

  Rucker said, “Why did the prosecutor use her, if he has a case that’s beyond a reasonable doubt that this is an arson? Why would a prosecutor of his abilities, and he is good, put on a witness like that? He wouldn’t need a witness like that, would he? But he did. And I think that tells you something.

  “All right, this is it,” Ed Rucker said. “I hate to stop talking. When I stop talking, that’s it. Because I can’t talk to you again, and the prosecution gets another argument, and I can’t reply to it.

  “But I am just going to tell you this: that mischaracterizing the facts doesn’t change the facts. Telling you the ceiling line is here or the fire moved there doesn’t establish that as a fact. It has got to be proved.”

  At this point in his closing it became more clear why he and Giannini had allowed a former deputy city attorney prosecutor and a retired deputy sheriff to sit on the jury. Rucker was depending on the law being carefully explained to these people, not just from the bench but in the jury room.

  “You decide this case on the facts, and you follow the law,” he said. “Because you don’t want the oath you took to mean nothing. I am asking you, not for John Orr, I am asking you for the integrity of this system.

  “The way you decide on those other fires, you decide. But on this one, on the Ole’s fire, I am asking you to come back with a not-guilty verdict, because that is what the facts are, and that is what the law is. Thank you.”

  At 4:00 P.M. that day, Ed Rucker had distanced himself and his case from Peter Giannini and his case in very direct and forceful language. Ed Rucker hated the death penalty and would have accepted Cabral’s tentative plea bargain in order to guarantee against it. He told his associates that he had to stop defending capital murder because he could no longer bear the responsibility and the toll that death-penalty cases had taken on him.

  In effect, Ed Rucker had given the jury permission to convict the defendant on the other arsons, but not on this one. He couldn’t let them kill John Orr.

  20

  DEATH HOUSE

  The June gloom of Southern California had set in, but at least the forecast of possible showers had proven inaccurate on Thursday, June 11.

  Peter Giannini got his chance at closing arguments that morning, quickly reminding the jury that John Orr had learned in San Luis Obispo that he was a suspect after finding the tracking device on his car. He said, “You heard a lot of argument from the prosecutors that he was trying to avoid detection. Well, he probably was. So keep that in mind when you’re looking at these fires. There were no fires from that point until he was arrested, no fires similar to any of the ones that they’d been investigating. Now, that’s a sign that he’d stopped.”

  Giannini was saying in effect that his client was a serial arsonist who’d been scared straight, a daring defense to say the least.

  “So, in order for him to be guilty of the fires that happened after that, you would either have to believe that he’d changed his method or changed the type of fire. Why would somebody do that if they know they’re being tracked? I don’t think anybody will argue that John Orr was stupid.”

  This jury had heard innovation from both defense lawyers. Rucker had told them he didn’t care much if they convicted John Orr of Giannini’s fires so long as they acquitted him of the Ole’s blaze. Giannini was saying that John Orr may have done all of the Pillow Pyro fires, but wasn’t dumb enough to have done the oddball fires that had occurred just before his arrest. Neither of his attorneys was saying what John Orr said to everyone: That he had never set any fire, not one, not ever. And that he wanted to testify, but had been strongly cautioned against it. And that his guilty plea had been a legal ploy that supposedly would have allowed him to walk free by the year 2002, at the age of fifty-three.

  Giannini began attacking the Hilldale and San Augustine testimony, as well as the Teletrac, which had only shown him in the general area of some fires.

  He continued with the What is he, stupid? theme when he mentioned photos and videotapes that the task force had seized, saying, “After he knew that he was suspected of starting fires, he’s going to put these pictures of fires up on the wall? Announcing that he had before-and-after pictures of a fire that, according to them, he’d started? Does that make sense to you?”

  He tried to refute witnesses, and testimony, and warned against suppositions based on little evidence. And then he went to the College Hills fire, briefly depicting the prosecution’s case as being based on the testimony of the air force major and the woman in whose bathroom John Orr had stood, unrecognized, a short time after she’d allegedly seen him at the fire’s point of origin.

  It was probably Peter Giannini’s best defense work. He portrayed the air force major as “a man that claims he has some kind of special memory powers that the rest of us don’t have.” He pointed out that the major had said that there were no cars on the street in College Hills, and that it had been an unusually quiet day, yet the firefighter witnesses said that traffic was so heavy they had to approach on the wrong side of the road.

  “The man with the photographic memory,” Giannini said, “had memory failure.”

  Once again, Giannini returned to the What is he, stupid? defense, saying, “If John Orr had actually been there setting that fire, there is no way he’d have gone up into that apartment with Gomez and Masucci.”

  When he got to the Warner Brothers fire, he was equally dismissive, if not contemptuous, of Burbank arson investigator Steve Patterson’s contention that he thought it had been an incendiary fire based on accelerants. Giannini said, “This is an open TV set. It’s like an unframed house in the back. I guess it means that John Orr had somehow gotten through one of those security-guard gates with, what? A gallon of gas? And spread it all the way along the back of the set?”

  About the alleged pretense that the defendant hadn’t known his way to Warner Brothers Studios, Giannini said, “John Orr didn’t say, ‘I don’t know how to get to the lot.’ He said, ‘I don’t know how to get to where the fire is.’” Giannini called it a “mix-up.”

  As to the security director who’d remembered Captain Orr having been at the fire in progress, Giannini said, “His recollection is that John Orr came while the fire was still burning. Well, nobody else remembers that. Nobody else testified to that. How do we know he’s wrong? There was in fact a parent-teacher conference that was scheduled at three-thirty to three-forty, and it lasted thirty minutes to thirty-five minutes. It’s also backed up by the Teletrac.”

  At one point he said, “He knew about fires. He was at a lot of fires. He was supposed to be at a lot of fires. So the fact that he’s there, and he’s the fire guy, means he was doing his job. That’s all it means. We’ve learned from all the investigators who we’ve talked to that that’s the only time you catch somebody, if you’re going to catch them.

  “This is not about fires other than the ones that he’s charged with here. It’s not about whether he was a good arson investigator. The common threads that Ms. Flannery told you about are essentially common to all arson investigators. So look at the facts, testimony, and the exhibits. Apply the law, and I think when you do, you’ll find that none of these charges have been proved beyond a reasonable doubt. I think you’ll find that the facts can reasonably be interpreted to point to innocence for each one of these particular fires. And when you find that, your job is done. You must find him not guilty. And I ask you to find him not guilty. Thank you.”

  After the noon recess, Sandra Flannery was first up with rebuttal. She apologized about the trial seeming to have
gone on endlessly, and promised she wouldn’t go on endlessly, and then she and Mike Cabral went on almost endlessly.

  She started with the Hilldale and San Augustine fires, reiterating all of it, beginning with how John Orr had gotten there quickly. She theorized that the defendant had set one fire, set a delay device at the other, gone home and switched from his own car into the Teletracked city car, then had gone back to the fire scene where the tracking device picked him up.

  It was a sort of bad-guy-in-his-own-car, good-guy-in-the-arson-car theory, which mirrored what Sandra Flannery and Mike Cabral privately thought about John Leonard Orr. They believed that he had been the man at the College Hills apartment house who had tried to warn the occupants to get out. They believed it was the good half of John Orr who’d spoken to the press after the College Hills calamity when he said he thought the arsonist “hadn’t meant” to touch off such a major disaster. They saw him as both firefighters in Points of Origin, two people in one skin, constantly at war with each other.

  After going point by point through the testimony, she then addressed the psychological premise in Peter Giannini’s defense. She said, “Does the fact that John Orr was under investigation prior to the time of setting these remaining fires suggest that he dared not set these fires? There’s a significant change in the type of fires. You no longer see the fires set in open retail establishments during business hours with a time-delay device.”

  When she got to the Warner Brothers fire, it was to bring up more Teletrac argument that he’d been close to Warner Brothers. But there were too many Evil Twin timing problems, with him in two places at once, so she did little to remind the jury that the Warner Brothers director of security testified that he’d seen John Orr enter while the fire was burning. Task-force members admitted that when all was said and done the Teletrac testimony was about as explosive as a mouse fart.

  College Hills was her major arson, so she devoted most of her rebuttal to it. In fact, she got a bit sardonic for the first time, and said, “In reference to John Orr’s weed-abatement program, he talked about transient arsonists that go from town to town setting brush fires everywhere. I guess the transients must’ve gotten word of John Orr’s weed-abatement program and stopped setting fires, because a photograph taken not long ago shows plenty of brush at the College Hills area. It’s always nice to have transients to blame things on.”

  She made an attempt to explain the eyewitness who hadn’t recognized John Orr when he’d stood in her apartment, saying that the defendant had been in the bathroom doorway, so the witness hadn’t really gotten a good look. After defending the air force major with the photographic mind, she then introduced a new ingredient to the stew being served. She said that in one of John Orr’s weed-abatement memos to Chief Gray a year before the College Hills fire, he’d considered starting a small business in the field of fire-insurance survey.

  It was the first insinuation to the jury that there could even have been a sinister profit motive connected with the brush fires, an insinuation that the defense would get no chance to refute.

  When Mike Cabral got up that afternoon, he promised to keep it brief, but this jury had heard that one before. He went after each of the defense witnesses who’d seemed contradictory, and made a clever point about the testimony of the Ole’s employee who’d said that the leaking ceiling had left a huge hole, something that the defense had used in saying there’d been a gap where a smoldering attic fire could’ve dropped down.

  Cabral turned it around and said, “It is inconsistent with a slow smoldering attic fire if it, in fact, existed, and was as big as she said. We don’t have, and all the experts agree on this point, we don’t have a slow, smoldering fire that’s oxygen starved, because we’ve got a huge hole in the roof where the fire would’ve pulled oxygen out.”

  He was saying that a big ceiling hole hurts the defense theory more than the prosecution’s. With a big breathing area, an attic fire would not have smoldered slowly, but would’ve raged swiftly.

  Alluding to the defense contention that it was not a really rapid fire, he said, “All that polyfoam is hissing, burning, that deep blue flame and the blue-greenish flame that Captain Eisele talked about. Look what Mr. Obdam says, five to ten minutes he had to get out of the building. Well, I don’t know. Five minutes? I’m sitting in this place and somebody tells me I’ve got five minutes to get out before that whole place is engulfed in flames and I’m dead. That’s a rapid fire. We got a sixteen-thousand-square-foot building. They don’t even know where they’re at. The people submit to you the evidence shows that those people were dropped to the ground long before ten minutes ever came.”

  When he came to ceiling tiles showing more fire damage on the attic side and confusing the investigator at the scene, he said that after the firefighters had vented the roof, the attic side of the fire burned freely where they couldn’t get water on it. He said that paint on the beams did not burn equally as it would have if a fire had charged the whole attic, and that some beams burned and some didn’t because the fire had risen up from down below. Moreover, he said, the burning on the attic side of the ceiling tiles could’ve been caused after the roof collapsed and formed a lean-to space where the fire kept burning the top side of the tiles until the firefighters could put it out.

  Cabral was stopped by the clock at 4:00 P.M. on Thursday, but was back at them the next morning, again trying to dismantle the testimony of defense experts by pointing out that a lot of their testimony had been based on two-dimensional photographs, making it impossible to tell anything about the depth of char. And no juror, nor anyone else with a smidgin of common sense, could fail to conclude that the entire business of fire investigation was enormously subjective, more of an art than a science, especially if one looked at photos of the pile of rubble that had faced investigators out there on the morning after Ole’s had been ravaged by an inferno.

  In a way, Mike Cabral made that point himself when he said, “So what does that leave us? Do we want to eliminate all of these experts? The people submit we probably can, and still decide the how. They’ve given you a great deal of information about how fire progresses, and on top of that you have a great deal of information about how this fire progressed. On top of that, you have the defendant’s statements telling you what happened.”

  Well, that perked up the dozing jurors. Defendant’s statements? John Orr had sat there for weeks and never uttered a peep.

  “He told Karen Berry what happened,” Cabral said. “He told Jim Fitzpatrick what happened. That’s all you need. That’s all you need: the fire-scene background and the testimony of the defendant establishes what happened and establishes it beyond a reasonable doubt.”

  So after goosing the jurors with a cattle prod, he’d gone back to smacking them with a pig bladder. He’d only been referring to those post-Ole’s opinions back in 1984 that John Orr had offered to various people.

  He resumed the technical dissertation and repeated what they’d heard from the lips of witnesses who’d been in Ole’s on the night of the fire. The prosecutor reminded the jury that Albertson’s Market in Pasadena was seven miles from Ole’s, and that Von’s Market was only a few blocks from Ole’s. Then he told them that the experts had testified that the incendiary device would allow a fifteen- to twenty-minute delay. Then he gave them his time line, after the Von’s device was set.

  “So he’s at Ole’s,” Cabral said. “He places his device in the location. He calls Verdugo. He’s told he’s dispatched to Albertson’s. He drives for ten minutes. That gets him to Albertson’s at seven-fifty-seven. He’s there ten minutes. That would be eight-oh-seven. He gets back to Ole’s, eight-seventeen. So we’ve got five minutes there that he can play with.”

  Rich Edwards had driven the route at various times, careful to observe the speed limit, and allowing time to enter Ole’s and set a delay device. It was a very close time line, Edwards had concluded.

  Cabral then decided to try to square the time at Albertson’s Market wi
th the fifteen or twenty minutes that Investigator McClure had recalled somewhat hazily, and he ended with, “Plenty of time, ladies and gentlemen. Plenty of time.”

  The prosecutor was suggesting that the defendant could have set a device at Von’s at 7:40, and in his Mario Andretti mode, raced several blocks to Ole’s to set another at 7:50, then sped several miles to Albertson’s for a look-see, racing back to Ole’s by 8:22 P.M. where he’d called Verdugo Dispatch from a public phone booth.

  Plenty of time? No. Possible? Maybe. If the investigation at Albertson’s had lasted five minutes rather than fifteen or twenty.

  Proof that the courtroom was nodding off showed itself by the fact that nobody even laughed when Mike Cabral was trying to flip to his advantage some testimony from the Ole’s defense witness named Beatrice, who’d testified to the hole in the ceiling where ceiling tiles had never been replaced.

  Cabral said, “And it’s the opening that gives the opportunity for the smell of smoke. The aerosols, not the fire itself. What would you expect to smell, in reference to Beatrice’s hole?”

  Toward the end, Mike Cabral got to the novel Points of Origin, particularly to the ice cream incident, implying that John Orr was not as creative as his lawyer implied, that perhaps he’d heard the little boy in the store begging his grandmother for ice cream.

  “No other investigator said there was an arson,” Cabral said, pointing his finger. “Only one. That man right there. The only person who said this was an arson, and then wrote a book about it. Only one person, who then, several years later, admitted taking a cigarette, three matches, wrapping them in a rubber band, putting them in a piece of paper, and setting fires to stores. In polyfoam. Only one person, the defendant.

  “And I submit to you, ladies and gentlemen of the jury, that the evidence in this case is overwhelming, that the defendant, on October tenth, 1984, entered that store, set it on fire in the polyfoam, and caused the death of those four people. And I ask you to return a verdict of guilty.”