Fire Lover (2002)

by Wambaugh, Joseph

  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 with 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."

  So, on Friday, June 12, 1998, the case against John Leonard Orr ended as it had begun, with a reminder that he'd pled guilty to the Builder's Emporium fire in North Hollywood. Observers could only wonder how it would have ended if John Orr had gone to trial in federal court in Los Angeles and been convicted, just as he had in Fresno, but had not pled guilty. Would the dynamic of this murder trial have changed?

  Once again, John Orr waived his right to be present for the read-back and jury questions, preferring to return to a nine-by-nine-foot cage at the county jail rather than to remain in the tank where strange fish swim.

  The jury in the case of the People v. John Orr would deliberate for a full two weeks, and during the first week there were some things going on in the courtroom. One of the alternate jurors wrote a note asking if he could be excused for a conference out of state if deliberations were not over by June 16.

  Ed Rucker, who'd noticed that particular alternate juror during trial, asked, "Was he asleep when he wrote that? Or is this one of the few times he
was awake?"

  The judge said, "I did watch him. And every time I thought it was time to kind of shake him, he would stir and move his eyes, so I do not think he was sleeping."

  By Friday, June 26, Cabral made a motion asking that redacted portions of the manuscript be allowed back into the case if the defendant was found guilty and the trial proceeded to the penalty phase.

  Rucker objected strongly, saying, "They're extremely inflammatory. They're very, very damaging. And we cannot say with any certainty that these are the feelings and emotions of the defendant. It is not a direct admission. It's not a confession, but the people will characterize it as such.

  "Having created a fictional character, ascribed emotions to this character ... to then assume that these are the emotions or the reactions of the defendant, given the highly prejudicial nature of those statements and the very callous nature of those statements, I would hope the court would exercise some caution here."

  At 11:00 a. M. that day, after exactly two weeks of deliberations, the jury sent a note to the judge, saying, "We have reached a verdict on all but one count. We do not believe further deliberation would be of any value. What would the court want us to do at this point?"

  After noon recess, the jury came back to the courtroom they'd left two weeks earlier, and handed the verdicts to the bailiff who handed them to the clerk.

  Judge Perry said to a media-packed courtroom: "All right. The clerk will now read the verdicts."

  The clerk read: "We, the jury in the above-entitled case, find the defendant, John Leonard Orr, guilty of the crime of first-degree murder, in violation of penal code section one-eight-seven-A, a felony, as charged in count one of the indictment. This twenty-sixth day of June, 1998. Juror Number Five, foreperson."

  So it went through counts two, three, and four, including the special-circumstances allegation of multiple murder. And then through all of the rest, all through the College Hills counts, clear through count twenty-five, all except for count six.

  It all had to be read, and then the question was asked, "Ladies and gentlemen of the jury, are these your verdicts, so say you one, so say you all?"

  Collectively, they answered yes, and then individually, all twelve had to answer in the affirmative.

  When it was over, Judge Perry said, "Let me address the foreperson regarding count six. Is it your view that this jury is hopelessly deadlocked on this count?"

  The foreperson said, "Yes, it is."

  "Do the people require any additional inquiry?"

  "No, Your Honor," said Cabral.

  "Are you moving to dismiss count six?" the judge asked.

  "Yes, Your Honor," said Cabral. "We would."

  "All right," said the judge. "That count will be dismissed."

  And John Orr was acquitted of setting the Warner Brothers Studios fire.

  Before dismissing the jury, the judge said, "All right, ladies and gentlemen, in light of these verdicts, there will be a penalty phase. And we would start that penalty phase on Tuesday morning at eight-thirty. I want to tell you that I believe there will be a considerable amount of publicity this weekend regarding your verdict. And I want to warn you again that you must be cautious, that you avoid any outside influences from family, friends, or loved ones, regarding the verdicts, and particularly not watch any television, news broadcasts, or read anything in the newspaper about this verdict. Thank you very much."

  After the jury was dismissed, there were some matters to be taken up that were highly disturbing to Ed Rucker, who said to the judge, "There are certain issues that come to mind that the court should litigate, and I don't think Mr. Orr should somehow be put at a disadvantage because we haven't raised them earlier."

  "Go ahead," said the judge.

  "I believe the people intend to offer evidence of four additional fires that were not litigated during the trial."

  "Well, let's ask Mr. Cabral," said the judge.

  "People's Department Stores, Mort's Department Store, Bell's Cottage, and Howie's Market," said Cabral.

  It became very clear to Ed Rucker that Mike Cabral, who had once suggested an off-the-record plea bargain and said he wasn't particularly interested in putting John Orr to death, was now preparing the syringe with more uncharged fires.

  Rucker later said, "When I asked Cabral why he was doing this, he indicated that he'd had some sort of revelation over the weekend and thought now it was his duty to go all the way to the death house with John Orr."

  Peter Giannini thought that the victims' families and renewed media interest had influenced Cabral's decision.

  Mike Cabral was well aware that Ed Rucker was furious with him, especially when the towering defense lawyer turned to him and said, "Well, let's get to the killing."

  As though the jury hadn't heard about enough fires while they were deciding whether to let John Orr live or die, Cabral wanted them to know that there were other unlitigated fires that had been set in retail stores. And Mike Cabral now routinely referenced John Orr's novel as if it were a diary:

  "They are not merely property crimes set to burn a structure down," he said to the judge, "but the purpose of the defendant in setting these fires, as noted in his manuscript, is to cause havoc to the individuals inside the location."

  The judge agreed, saying, "I do think that given the fact that the fires in the other establishments were open retail establishments where people were likely to be there, that that is sufficient to bring them within section one-ninety-point-three."

  Rucker tried to keep the prosecutor from piling on at this critical juncture, and said, "I am not going to quarrel with the court's ruling, but I believe the people will offer evidence that these are time-delayed fires. As such it would be our position that it would be difficult to assume that the acts were directed at a person when it was unknown who would be in the store, or whether anyone would be in the store at the time they were ignited."

  Judge Perry replied, "Well, I think you start with the crime of arson itself. And arson is categorized in some sections of the penal code as a crime of violence isn't it?"

  "A serious felony," said Cabral.

  "It is a serious felony," the judge agreed. "And I just think that under the circumstance where the defendant is alleged to have set fires, albeit with a time-delayed device in an open retail establishment, I think that is enough."

  "All right," Rucker said. "Just so that the record is clear, we would object on constitutional grounds that this would be a violation of due process for allowing unlimited or nonrestricted evidence that the people intend to offer."

  When the jury was brought into the courtroom, Judge Perry read the lengthy instructions regarding murder in the first degree, with special circumstances alleged which had been found true, namely that there had been multiple fatalities in the Ole's fire.

  "In the guilt phase of this trial," he said, "you were instructed that you could not consider sympathy or sentiment. You were also instructed that penalty or punishment was not to be discussed or considered. Those instructions no longer apply. You may now consider sympathy, and you must consider the consequences of your verdict. It is up to the jury to decide whether the defendant shall be sentenced to life imprisonment without the possibility of parole, or death."

  Sandra Flannery was up first, and she said to the jury, "At the end of this case, we will maintain that the aggravating factors are so substantial in relationship to any mitigating factors, that the penalty of death is warranted, and that it is the only morally appropriate punishment in this case. Having set a fire that killed four people, John Orr continued setting fires, endangering the lives of more people. Under the guise of being the protector of good, John Orr was, in fact, the perpetrator of evil. At the end of this, we will zealously urge you to impose the penalty of death as the only morally appropriate sentence in this case. Thank you."

  When Ed Rucker stood, he said, "Well, I hoped we wouldn't be here. But we've reached a point where we're now going to embark together on a very difficult j
ourney that's going to affect all of us. And you have to decide whether it's appropriate, it's just, it's something your conscience can live with, that John Orr should spend every single day of the rest of his life in a cell until he dies in that cell. Or whether he's taken, strapped in a chair, and given lethal gas to kill him.

  "Now, to assist you, we would hope to present to you, that like all of us, all human beings, there are parts to him. He is not a one-dimensional monster. He is not just a man who has set fires. He's a man who's lived a life, perhaps not an exemplary life, but a life. And we'll present to you some family members to talk to you about his boyhood, his joining the air force and the fire department.

  "I'm confident that you can make the right decision here if you're guided by the goals of punishment, which would be to protect society and to punish John Orr.

  And at the conclusion, I'm going to ask you to spare this man's life. I'm going to argue to you from my heart that living the rest of his life in a cell is punishment that protects society from him forever. And it's one you should all be satisfied with."

  And then Mike Cabral began to call the family members of the Ole's victims, and it was heartrending. Luis Cetina, older brother of Jimmy, told about how he'd wanted to play catch with Jimmy on that last day, but when Jimmy didn't, Luis had said, "I'm not gonna play catch with you anymore."

  Little memories produced big guilt. And he told about all the promise that the gifted young athlete had had, and how Jimmy was so loved that the church could not hold all of the mourners. He told of the Volkswagen that his family had bought but never driven because they could not afford insurance. He told them that the first time the car was ever driven was behind the hearse that carried Jimmy Cetina's body to the cemetery.