"I think I know some of the concerns I'd have if I were sitting in your spot. And the first concern is, you don't want to make a mistake. Nobody wants to make a mistake about something like this. And I know how conscientious you were about your decision. That was very obvious. You took your time. You looked at all the evidence. It was a thoughtful decision on your part, and you were convinced beyond a reasonable doubt that John Orr set that fire at Ole's.
"I accept that. I accept it. But now is not the time for us not to talk honestly with each other. I'm telling you honestly from the heart, with all due respect, all due respect, that I just happen to disagree with your decision. I accept it, but I happen to disagree.
"The death penalty is an absolute punishment. There's no coming back from the death penalty. In order to impose an absolute punishment you've got to be absolutely certain, and His Honor is going to read you a jury instruction about that. It is appropriate for the jury to consider in mitigation any lingering doubt it may have concerning the defendant's guilt. Lingering doubt or residual doubt is defined as that state of mind between a reasonable doubt and beyond all possible doubt. So if you have any doubt at all that John Orr didn't set the Ole's fire, you can use that as evidence in mitigation. Because this is something that has happened under our system. Men have been convicted, men have been executed ..."
Cabral stopped that with an objection, and the judge said, "Yes, that is objectionable. Disregard the last comments."
Rucker continued, "Well, two hundred years ago, Thomas Jefferson said that until the infallibility of man's judgment is proven, I will not favor the death penalty. And that's common sense. So how certain are you? How certain can you be? Remember, this is a case of circumstantial evidence. No witness came in here and said, I saw John Orr set that fire. No police officer came in here and said, I arrested John Orr and he told me he committed that arson. You didn't hear any witness say they saw John Orr driving away from the fire. No device was found at that fire."
With this approach Rucker was taking a road less traveled. Lawyers seldom refute the jury's findings in the penalty phase of a capital murder trial. It's too easy to anger a jury by implying that they've been wrong, but that is what he did for several minutes.
He said that because so much time had passed since 1984, perhaps all witnesses had not been found, and he began to directly argue again, saying that there were witnesses who'd seen smoke coming from the roof. He was still arguing for his attic fire, a very risky tactic at this point, after the jury had already decided that issue. But he persisted.
Rucker told them that during Cabral's final argument, he'd suddenly realized for the first time that the fire could have gone up over the south exit, through the acoustical tile and back through the attic area, accounting for all fire burns in that area. Rucker couldn't stop. He was still arguing his case. Possibly, Ed Rucker could get away with it because he was so desperate to save another man's life. He was imploring them with passion and humility to have mercy on his client. This giant of a lawyer was figuratively on his knees.
"It was heart wrenching," he said, "to listen to those parents talk of the loss of a child, loss of a mother, loss of a loved one. Unfortunately . . . unfortunately, we cannot change that. We just can't!
"Now, you could not be lenient to John Orr if you wanted to. No words can describe how horrific a punishment life without the possibility of parole is. One cannot describe the man-made hell of steel and cement that you are going to drop that man into. Everything that we use to define life and living is taken away. And they suggest to you that he would sit there and somehow enjoy thinking about fires? He is going to sit there and think what he has done to his life, and what he has done to other people, and what he has done to his family, and have no respite from that.
"You are never required to give the death penalty. You have to choose to give the death penalty. I would suggest to you that John Orr is not so reprehensible. He has not led such a despicable life. He is not so lacking in redeeming human qualities that he falls among the worst of the worst. We can protect ourselves from John Orr. We can lock him up forever. We do not need to kill him. And the things that he has done in his life must count for something. They must. They must count to set him aside from the worst of the worst."
After describing how John Orr's family loved him, and his service in the air force, and lifesaving as a firefighter, he again tried to separate his client from the worst of the worst. He said, "This was not an act based on evil. This was an act based on a mental defect. Anybody who sets fires time after time after time-and doesn't do other antisocial things such as robbing banks or raping women-what does that tell you? He's not normal. He's got a mental defect. That is something under the law that you can consider.
"I don't think, in the rush of the moment, in the heat of anger, in the very understandable sympathy for the victims of these fires, that we always think about the consequences of a decision to take somebody's life. I personally think we all pay a price if we do that. I don't understand the twisted logic that says somehow we'll show respect for human life by taking human life. I think, as a society, we erode our respect for life when we do that. I think that's the signal we send to our children. And I think all of us in this courtroom will have to lose a little bit of our humanity if we vote to take a life. I think you are going to have to deaden a little part of you to do that.
"You know, one of the ghoulish aspects of this process is that as his lawyer, I get invited to the execution. So I will be living with this for a while. We pay a price. And you will pay a price if you vote for this.
"In all the years I have practiced law I have never known a juror who regretted passing up the opportunity to give somebody the death penalty. One of the most uplifting moments of my life is when I was in college at Berkeley, I had the honor of being on a committee to welcome Dr. Martin Luther King. I got to shake his hand. And I remember when he was shot down by an assassin, his wife, Coretta King, said she would not join the voices of cynical people who felt that the killer of her husband deserved the death penalty. She said that's not what Martin would have wanted. It's not what she wanted.
"Now, it's hard to speak to you about mercy, but I do know that there is some benefit to all of us if we stretch out a hand in an act of mercy. And mercy is not given to somebody who's earned it. It's not given to somebody who you have sympathy for. An act of mercy is given for your benefit. Your benefit. It's what makes us human. It raises us above whoever we sit in judgment on.
"If one of you, one, decides that John Orr should not receive the death penalty, he doesn't. So what that means is, each of you has the power to give life or take life. Each of you. It is very tempting sometimes, particularly for a man, to think that taking life is the brave thing to do. The strong thing to do. I don't agree with that. I don't know how brave it is to say, I want somebody else to take this man down a hall and strap him in a chair. You don't give medals for those who serve on firing squads.
"If you believe the death penalty is not appropriate, I'm begging you to be strong in your resolve. This is not a time for weakness. Each of you have equal dignity. If you don't vote your heart, and if you don't vote your conscience, that means somebody else gets two votes. And that means sometime in the future you're going to look back and say you didn't fulfill your oath and your responsibility.
"I'm asking you to spare this man's life. I am not ashamed of it. I am going to beg you, for my sake, for his sake, for his family's sake, for all our sake. I am going to ask you to be strong. I am going to ask you to bring back a verdict of life without the possibility of parole."
After the judge read his lengthy jury instructions an adjournment was taken until the next morning. Observers could debate the different approaches taken by the four lawyers in the courtroom that day, but if passion was an important ingredient in such circumstances, it was clear which side got the edge. Rucker looked like a man who would've closed his argument with a Glock .45 and a chain saw, if it would've saved his cl
ient's life.
Peter Giannini reported that Ed Rucker had been brokenhearted when the guilty verdict for the Ole's fire had come in, and he certainly wouldn't be getting much sleep as he awaited this verdict. One way or the other, Ed Rucker said he was through with death-penalty cases.
On Tuesday, July 7, Juror Number Eight was unable to be in court due to a personal emergency and was excused. Alternate Number Four was seated, and deliberations were begun.
Late in the morning, on Wednesday, July 8, the jury handed a note to the bailiff that read: "Is there a legal definition for the term force or violence? And if there is, is the commission of an arson considered the use or threat of use, of force or violence as used in CALJIC 8.85, subsection b?"
That was enough to get the lawyers and the judge into a legal dispute for an hour or so, and in the afternoon the jury was brought into the courtroom.
"This is our answer," the judge said. "The terms force or violence have their ordinary meaning. An arson of property is not considered to be criminal activity involving the use of force or violence unless there is the threat of harm or injury to humans, or a danger to human life."
On Thursday, July 9, with all lawyers present, the judge said, "We've received a note from the jury approximately forty minutes ago. That note reads, 'The jury is deadlocked. We do not think further deliberations would be helpful.' "
The jury was brought out and seated, and the judge made the inquiry: "Juror Number Five, do you think any additional read-back of testimony or any further instruction on the law might assist this jury in breaking the deadlock?"
"No, I do not," said Juror Number Five, the foreperson.
The judge then asked the same question of every other juror and received the same answer from each of them.
The judge said to the foreperson: "Can you tell us in what direction the last vote was, and what the numbers were?"
"It was in the direction of the death penalty. Eight to four."
"All right," said Judge Perry. "I have declared a mistrial. We are going to release you. I want to tell you that it has been a long road that we started on April thirtieth. I want to express my sincere appreciation for the devotion you have shown in judging this case."
Judge Perry set the matter for sentencing and asked for a declaration by the district attorney if the prosecution intended to seek a retrial on the penalty phase. The judge lifted all gag orders, but advised Cabral to be careful in talking to the press if he was considering a retrial.
And it was over, finally over, until sentencing on September 10 at 8:30 a. M.
Mike Cabral had a barbecue at his home, and all of his D. A.'s task-force members were invited. Everyone but Walt Scheuerell, who was living in retirement near Yosemite, made the long drive east to Moreno Valley. And everyone agreed that they had experienced their "career case."
All in all, it was a lighthearted celebration with lots of kudos to Mike Cabral for being the first prosecutor ever to rehabilitate a very old case of "accidental fire," at the same time successfully prosecuting a defendant for a capital crime. It would certainly be his career case.
One of the people at that barbecue was former Burbank arson investigator Steve Patterson, who brought a trophy to Cabral on behalf of the task force. And they presented it with beers and cheers and as much seriousness as they could muster. Steve Patterson seemed to be enjoying his retirement, and almost, but not quite, made it through the afternoon without mentioning Mary Susan Duggan, saying what a pity it was that he couldn't have persuaded others to heed his theory, to listen to his evidence, to act on his hunch.
And everybody within earshot would suddenly get hungry and sidle away for some more barbecue.
The sentencing of John Orr was supremely anticlimactic. He came into Judge Perry's courtroom wearing jail blues, looking a decade older than he'd looked when he'd been taken into the county jail system nearly four years earlier. Peter Giannini stood with him and was not even acknowledged by the angry defendant.
Judge Perry sentenced John Leonard Orr to four concurrent terms of life imprisonment without the possibility of parole, plus twenty-one years on the additional fires. All in all, it was not an unhappy day for the defendant, who would now get out of county lockup and into a federal penitentiary where he could start to live like a human being.
Of course, the District Attorney's Office informed the court that they would not be retrying the penalty phase, and it was truly finished, except for the inevitable appeal.
Eighteen months later, on March 15, 2000, the Court of Appeal of the State of California, Second Appellate District, decided an appeal from a judgment of the Superior Court of Los Angeles County in the case of the People v. John Leonard Ot r. The judgment of Judge Robert J. Perry's court was affirmed with a slight modification of the consecutive sentences in the College Hills fire. The appellate court agreed that the defendant's aim had been to set a brush fire, and the burning of homes was incidental to his objective, so the consecutive terms imposed were deemed in error, and the sentence was modified. That meant that after serving his federal term and his state term for all of his natural life, he would only have to serve another twelve years instead of twenty-one.
Chapter 23
THE QUEST
After his appeal was rejected, life for John Orr was still worth living. His was not the kind of personality that turns toward a wall and shrivels. Indeed, his life at "Club Fed," the U. S. Penitentiary at Lompoc, was surprisingly tolerable. He lived in a room, not a cage. He called it, wryly, his "mini-apartment." He was in the Honor Unit, so the door to his room was left open unless there was a general lockdown for some reason, and he could come and go to the common bathroom down the corridor. And there was another common room with a TV where programs were selected by vote of the inmates in the Honor Unit. He wished for a good steak once in a while, but reported that he was in the best shape of his life. He looked younger and certainly healthier than he'd looked during his murder trial.
John Orr became a prison librarian and taught creative writing to a small group of inmates. He'd managed to write a voluminous autobiography called Baptismal Fire, describing how he'd been betrayed by a system of sinister investigators, incompetent lawyers, dishonest prosecutors, and biased judges, who'd demanded that he produce impossible "lunch with the pope" alibis, and convicted him when he couldn't.
He proclaimed his innocence to anyone who would listen and kept a fellow inmate, a "jailhouse lawyer," busy drafting an appeal of his government conviction under the theory that if he could have the Fresno verdict reversed all else would fall, because all else had been based upon that first conviction.
That was the theory, and he thought he could prevail by citing the Timothy McVeigh Oklahoma bombing case in a claim that government evidence had been withheld at his trial. The prisoner had twenty-seven phone numbers on his list of telephone contacts, and was allowed one ten-minute call per day.
Visitors were surprised by the facility in that beautiful part of the Central Coast, Lompoc being the flower-seed capital of America. Upon driving up to the prison, one would encounter less dangerous inmates jogging beside the entry road, and the climate was so mild that those prisoners could be outdoors just about all year. Even in the more secure part of the penitentiary, where John Orr lived, the guards wore blazers, white shirts, and ties, with nobody looking like the bulls from old prison movies. The visiting room was large and airy, and had food and drink machines and lots of kids running around on visiting days.
The real problem for him was that federal prison guidelines might mean that he could be paroled out of the federal system and into the state system as of 2002. He hoped that even if his appeal failed, he could find a way to stay at Lompoc for at least twenty years. Federal time was better than state time anytime. State prison was what Ed Rucker and Peter Giannini had described to the jury as a living hell.
John Orr had managed to secure a literary agent, and both of his books, Points of Origin and Baptismal Fire, were to be publishe
d on-line as E-books. He was excited about that, even though no profits from book sales could go to him. Court TV interviewed him and he thought they'd done a fair job, better than other interviews he'd given. But after seeing the final product, he hated it.
And something else had happened. John Herzfeld, the Hollywood producer/director/writer, whom the Pillow Pyro Task Force had tried to enlist in getting a copy of John Orr's manuscript, had gotten his movie project off the ground. He was finally shooting his version of Points of Origin, having purchased the movie rights years earlier. It would be shown on Home Box Office and starred Ray Liotta as John Orr. Though the prisoner feared the cinematic depiction, clearly, he was thrilled by all the attention he was getting.
"Hoo-ray for Hollywood!"
So said Steve Patterson, after he'd been referred to John Herzfeld by Mike Cabral. Herzfeld and an associate came to his home and invited Patterson to a lunch at the L. A. Police Academy with actor Ray Liotta to chat about the secret life of John Orr. Steve Patterson was ebullient because John Herzfeld was the first person in years to want to hear about Mary Duggan, and Patterson found it all coming back, pouring back, washing over him. He persuaded Herzfeld to accompany him to the place where Mary Duggan's body had been found, and Herzfeld came to share Patterson's suspicion that John Orr had murdered her. He promised Patterson that he would try to exert pressure on Mike Cabral and the District Attorney's Office.
Two days later, Steve Patterson got a call from Cabral, who said, "Thanks a lot, Mr. Bigmouth! I get you a nice afternoon out with movie people and this is the thanks I get?"
"I hope I didn't get you in trouble," Steve Patterson told him.
Cabral said, "No, it's okay." Then he added, "To tell you the truth, I'd forgotten about Mary Duggan."
After the promised phone call from Herzfeld, Mike Cabral wrote a letter to the Burbank Police Department asking what had became of the vaginal swabs from the Mary Susan Duggan murder investigation of 1986. He informed the police that the District Attorney's Office was interested in pursuing a DNA test to determine if the genetic signature of the killer could be obtained. Cabral was told that a DNA test could be ordered, but would take six months due to the workload at the sheriff's DNA lab.
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