The prosecutors had received a few offers from the defense that they’d rejected. The first was the offer to take a polygraph. The prosecutors believed that a polygraph would be useless. Their thinking was that a psychopath’s underdeveloped superego, or conscience, made him unfit for the polygraph. An ego like a cruise missile, a superego like a BB, is how they looked at John Orr.
Then the defense had another idea: “How about a plephysmograph?” they asked.
And when the prosecutors said, “A what?” it was explained that a sensor could be attached to John Orr’s frontispiece in order to measure blood flow, thus signifying an erection. It had been used with some success on child molesters in clinical settings.
The prosecutors said no, videos of burning buildings and brush fires and Campfire Girls roasting wienies probably wouldn’t prove much. They said that even though the fictional arsonist was always waxing his carrot at fire scenes, having John Orr hang a wire on his wang wouldn’t be admissible even if he did get a woody.
John Orr said well, he was game for just about any other test they could devise.
The press flocked to the courthouse for the first day of trial, Tuesday, July 21, 1992. Presiding was U.S. District Court Judge Oliver W. Wanger, a snowy-haired jurist known for his relaxed, laid-back courtroom and his booming voice.
The defendant, who’d been staying at a Fresno hotel under his lawyer’s supervision, looked scholarly in a tweed jacket, a subdued necktie, glasses, and a gray-streaked beard.
The government lawyers had charged John Leonard Orr with five counts of arson: two in Fresno, one in Tulare, and two in Bakersfield. Judge Wanger began by explaining to the jury the difference between direct and circumstantial evidence. He used the example of a witness seeing a man take a gun from the trunk of a car, which was direct evidence, and a witness seeing a man standing by the open trunk and being found to have a gun. That was circumstantial evidence. The judge gave the obligatory admonishment about not reading any news articles or listening to any radio or TV reports about the case, and everyone thought, Fat chance. You couldn’t walk without slipping on the drool left by slavering hordes of reporters.
Assistant U.S. Attorney Pat Hanly handled the opening argument, and after asking that witnesses be excluded from the courtroom, he described for the jury how John Leonard Orr, after attending an arson conference in Fresno, had set five fires in the Central Valley, then returned home and wrote a book about it.
He described the incendiary delay devices found in Tulare, Bakersfield, and Fresno at the retail establishments, and he used the term signature device. Of course, he talked about the fingerprint collected by Captain Marvin Casey, and how it was eventually matched with the defendant’s left ring fingerprint.
Hanly sketched the surveillance to San Luis Obispo when the tracking device was discovered by the defendant, as well as the defendant’s failure to ever come forward to ask why he’d been targeted. Lastly, he discussed the letters that John Orr had written to agents and publishers discussing the arson series, including: “I was even considered a suspect at one point.”
When Hanly’s synopsis was concluded, Douglas McCann began his opening argument by discussing the arson conference, and pointing out that the defendant had received a “completion certificate” for attendance, implying that John Orr must have been there until the end of the last day, during the time in which fires were being set. He was concentrating on an alibi for the hours between 8:00 A.M. and noon on January 16, 1987.
McCann agreed with the government’s thesis that one man had set all five fires, but not the man at counsel table. He disputed “consciousness of guilt,” wherein the prosecutors maintained that because John Orr hadn’t come forward after knowing he was a suspect, one could infer culpability. He summarized the evidence found in the black bag in the defendant’s car, and implied that all the things in that bag were tools for an arson class that John Orr had been teaching, and that his partner, Joe Lopez, would verify it.
As to the most damaging piece of evidence, the fingerprint collected by Marvin Casey, McCann informed the jury that in 1989, a Department of Justice fingerprint expert had examined the defendant’s fingerprint, but had found no match. And that two years later someone else supposedly found a match, and because of that two-year gap and stark difference in the analysis—and because Marvin Casey hadn’t written a date on that piece of notebook paper—the jury could question whether it actually had come from the arson attempt or had been fabricated.
John Orr’s attorney was more than hinting at task-force malfeasance by then, and he discussed John Orr’s superior, Battalion Chief Christopher Gray, from whom the task force had heard details in October 1991 about the manuscript, according to the prosecution’s version of events.
McCann then said, “Now the government, probably Mr. Matassa, will probably say, the first time he ever saw that manuscript was some time after the positive comparison. But we believe the evidence will show that the government had made contact with Mr. Gray prior to this positive comparison. And if it wasn’t for the manuscript, there never would have been a positive comparison. That’s what the evidence will show. That’s why we are here today. At some point in time, the government decided, ‘He’s our suspect, let’s follow him. Let’s surveil him.’”
McCann concluded his opening with: “A big part of this case will be the manuscript in relationship to the fingerprint, and whether or not that yellow paper came from that particular fire.”
It would be fair to say that the task force and prosecutors were very surprised. The defense case was almost completely based upon a government frame-up. An elaborate frame-up which would include Marvin Casey, unnamed fingerprint examiners at the L.A. County Sheriff’s Department, the task-force investigators, and possibly the assistant U.S. attorneys, Stefan Stein and Walter Brown.
This would be a vast government conspiracy, even though, as Pat Hanly put it, “We’re working for a government that can’t conspire to get out of its own way. A government that can’t get us our paychecks on time. A government that always leaks everything.”
Hanly thought that Douglas McCann had picked a losing strategy. McCann had not only hurled down the gauntlet, he’d also thrown at them his sword, shield, and horse—the whole goddamn thing!
Hanly wondered how a former law enforcer could strike out at other law enforcers but not take the stand in his own defense. Now it seemed that John Orr must testify.
Prosecutor Carl Faller immediately wanted to meet head-on any defense assertion that the author of Points of Origin wrote about the fire series in the Central Valley only after learning about it from Fresno arson investigator Tom Kuczynski.
The important portion of Kuczynski’s testimony began when Faller asked, “Now, after the fire took place in 1987, at some later time did you have an occasion to discuss this particular case with the defendant, John Orr?”
The witness said, “I asked him if he knew of any commercial buildings that were set on fire while they were open for business, and where a device was used. He said, basically, he hadn’t heard of anything. And he told me about a hardware-store fire that he had a few years prior.”
That testimony by the witness effectively countered any suggestion that “Ski,” as he was called, had provided details to John Orr about the Central Valley fire series, including that an arson investigator from the Fresno conference was suspected, details that had wound up in John Orr’s novel.
And if prosecutors Faller and Hanly were not very interested in the last few words in the witness’s answer, another prosecutor certainly was: Michael J. Cabral from the Los Angeles District Attorney’s Office, who had come to attend a part of the trial. The “hardware-store fire” that John Orr had gratuitously brought up to Kuczynski was the Ole’s fire, which apparently had never been far from the defendant’s consciousness.
Another witness that day testified that he’d worked at House of Fabrics, a few stores away from Hancock Fabrics, and that two weeks after the Hancock
Fabrics fire he discovered the remains of an incendiary device in a pile of pillow stuffing. It was the first time the jury would hear from a witness about the cigarette, matches, and rubber band, which they would come to know as a “signature device.”
The day’s final witness had worked in Tulare at Family Bargain Center, and testified to a small fire and the finding of a delay device in a pile of pillows. The witness provided the jury another look at the cigarette, matches, and rubber band, but this time a piece of notebook paper had been found, partially intact.
Pat Hanly then gave this witness a chance to directly place the defendant at the crime scene when he asked, “Did you see anybody in the store who stuck in your mind, either before or after the fire?”
“Yeah,” the witness answered, “there was a man that entered the store … basically looking down at a piece of paper in his hand.”
“Could you describe the piece of paper for us?”
“It was a piece of yellow legal pad,” the witness replied.
And then after some testimony about the yellow notepaper being blank, and the customer looking down at it, he recounted the description of the man that he’d given to investigators:
“He had dark hair, black hair, probably five-ten, medium build, mid-twenties, is what I put in the report.”
And because the defendant was nearly thirty-eight years old at the time of the fire, Hanly asked, “Now, would you please tell us what mid-twenties means to you?”
The witness replied, “It’s hard to judge somebody’s age. I would say mid-twenties could be anywhere from twenty-four, twenty-five, up to maybe thirty-two, thirty-four.”
As soon as the jurors were in place the next morning, the prosecution called its star witness, Marvin Casey, who began by testifying that he was a fire captain for the city of Bakersfield with twenty-five years of service. He listed his bona fides as an expert in fire cause-and-origin analysis, and arson investigation. Then they got down to it—the attempted arson at CraftMart on January 16, 1987.
Casey testified that there’d been a fire in a display rack and that he saw, in the dry powder from the store’s fire extinguisher, the incendiary delay device: a cigarette, matches, rubber band, and scorched piece of yellow lined notebook paper. He described his careful collecting and packaging of the evidence.
Because of Douglas McCann’s opening statement about the notebook paper not being dated, Hanly asked the witness: “On January sixteenth, did you initial the yellow lined paper and date it?”
“No,” Casey answered.
“And why is that?”
“I didn’t do it because I was afraid I’d mess up the evidence. I would never have initialed it, like I wouldn’t have initialed the cigarette match device either. I wouldn’t have put any mark on them.”
Hanly asked if he’d initialed and dated anything, and the witness informed the jury of the protocol: he’d initialed and dated the evidence envelope, not the evidence inside it.
When he was asked if he’d taken photos at the store of the entire device, he said that he had not. When asked why, he responded, “Well, at the time I was dealing with just a fifty-dollar loss of some dry floral arrangements, and I didn’t feel it necessary to take photographs. I had conducted what I considered to be a thorough investigation, so I felt like that was enough.”
The irony was not lost on those familiar with the convoluted Pillow Pyro investigation. The seemingly insignificant arson attempt might become the key to unlock all of it—from the Ole’s catastrophe through the astonishing arson series in retail stores through the College Hills fire where sixty-six homes were burned—all of it.
The first questions that Douglas McCann had for Marvin Casey concerned Casey’s decision not to photograph the intact incendiary device when and where it was found at the fire scene, rather than back at the office.
McCann said, “So there’s not one document anywhere that will tell us that this yellow piece of paper existed on January sixteenth, 1987. There’s no document anywhere that will tell us that, is there?”
“No,” Casey answered.
“And this report was made on the date of the fire?”
“Yes.”
“You ever heard of the term ‘chain of custody’?”
“Yes,” Casey answered, with that blue-eyed Panhandle squint that said: You are pissing me off, boy!
There followed a series of short questions about missing links in the chain of custody, dealing with absent evidence envelopes and how some investigators had initialed the yellow notepaper, and the fact that it had only been signed by Casey in September 1991, when the government was putting together its case for the search warrant.
McCann said, “You didn’t want to disturb anything on that yellow paper. That’s why you didn’t put a little pencil mark—‘one-sixteen-eighty-seven’—is that what you are saying?”
“That’s correct,” Casey answered.
Then, after trying to indicate that the packaging, forwarding, unpack-aging, and examining of the yellow notebook paper was sloppy if not suspicious, McCann said, “You have testified that you are an expert in cause and origin?”
“Yes,” Casey answered.
“In fact, have you attended classes that John Orr instructed?”
“That’s correct,” Casey answered.
Questions continued coming fast, and not for the last time, the court reporter had to ask McCann to slow down his hyperkinetic delivery. The thrust of the questions was designed to persuade the jury that the piece of notebook paper in the courtroom was not the paper that Casey had found, especially because the paper had been torn into two pieces.
Nothing had been implied as yet about Casey being part of a conspiracy. At this juncture, the defense was hinting at careless collection and marking of evidence, and that Casey was there in court identifying a piece of paper that the government told him was the paper he’d collected in 1987, but that he really had no idea if it was or was not.
On the second day of the Fresno trial a Los Angeles Times news story was headlined: FIRE CAPTAIN CALLS ARSON TRIAL A CONSPIRACY.
As his trial opened in U.S. District Court, Glendale Fire Capt. John Orr defiantly charged that the government’s case linking him to five Central Valley arsons in January, 1987, is a conspiracy of lies to railroad an innocent man.
“Have you seen the movie ‘JFK’?” he asked The Times during a break in the opening arguments Tuesday. “They went down to the morgue and placed Oswald’s hand on the butt of that rifle … The only difference is that my hand wasn’t cold.”
Well, that approach was guaranteed to draw a crowd in the court of public opinion, and it resulted in an inordinate amount of coverage in the print and electronic media. In 1992 the public’s appetite for government conspiracy and police malfeasance already had been whetted, not just by the film JFK, but by the Rodney King beating and other high-profile cases.
John Orr didn’t think that his thirty-two-year-old lawyer was old enough, smart enough, or even graceful enough. John Orr complained that his lawyer had tripped over his own briefcase three times while he was “flitting” around the courtroom. He thought McCann’s machine-gun oratory was off-putting to the conservative folks of Fresno. And he deeply resented that his defense was costing him and Wanda forty thousand dollars.
But for all that, he had a lawyer with enormous intensity and belief in his client, and the fee was far less than many would have charged for such a difficult, time-consuming case. Douglas McCann had a good sense of humor, which his client was in no mood to appreciate, and his youthful high-wire style in the courtroom, with hair flying and eyes blazing—and the court reporter pleading for him to slow down—wasn’t all bad, given what he was up against. The creation of reasonable doubt in the government’s evidence was his only option. A phlegmatic approach when one is making an extravagant allegation against the U.S. government might not have carried the emotional appeal necessary. He needed, as it were, fire in his presentation.
Not the fi
rst to use the game of baseball in portraying his feelings about the crux of the case, McCann said, “Ordinarily, there’s no defense against a fingerprint. It’ll knock you right out of the box.”
The defense was obliged to confront a former clerk from Hancock Fabrics in Bakersfield who had, in 1987, given a description that was very close to John Orr’s at the time, and she related how she’d smelled cigarette smoke but that the suspect did not have a cigarette in his hand when she’d seen him. And she described how she’d picked John Orr out of a photo lineup. The defense did a good job with a good witness, and before she left the stand she admitted that she was only “seventy percent” certain that the defendant was the man she’d seen in the store.
The next witness called was Clive T. Barnum, the crusty fingerprint expert for ATF who’d been doing his job for thirty-five years. Barnum testified as to how he’d processed the piece of notebook paper that had been forwarded to his lab by Marvin Casey in 1987, and that the latent print that popped out of the ninhydrin solution was a very clear one that even a layman could read. The exchange between defense counsel and the grizzled lawman perked up the press a bit.
“Was it a pretty obvious make?” McCann asked Barnum, referring to the match.
“Well, I certainly think thirteen is a considerable number of points,” Barnum answered, referring to the fingerprint points of comparison.
“If you were comparing an exemplar to a latent and there were seven points, you would make a note of it, correct?”
“Make a note of it how?”
“Would there be a number less than seven that you wouldn’t draw a conclusion at?”
“There’s no certain number you need for a positive identification of fingerprints,” Barnum said.
“Even if there were only three points that matched?”
“I would have to see the print. I would have to examine it.”
Fire Lover Page 18
