“Because it’s more than just the points?”
“I know where you’re going,” Barnum said. “I know where you’re going. I’d have to see the print.”
“I don’t think you’re qualified as a psychic yet,” McCann countered.
“Well, I know where you’re going,” Barnum repeated.
“Well, where am I going?” McCann challenged.
“You’re going to start to count down.”
“Actually, you don’t know where I’m going. Where I’m going is, I’d like to know if you had five or six points of comparison, in some situations you’d draw a conclusion that there was a match, isn’t that true?”
Not buying into hypotheticals, the crafty old fingerprint expert said, “I’d have to see the print.”
When McCann asked how long a latent fingerprint could remain on a piece of paper, Barnum answered, “Forty years, under laser enhancement.”
Carl Faller’s next witness was Jerry Taylor, an explosives-enforcement officer for ATF who testified to M.O., crucial in linking this fire series as well as establishing a foundation for a future prosecution of the Los Angeles series. After lengthy testimony about incendiary delay devices, including how and where they were placed and in what sort of retail stores, Faller asked, “Now, based upon your training and experience, did you come to the conclusion as to whether the fires were started by the same individual?”
The witness replied, “Those fires were not only started by the same individual, but the same individual built the devices.”
The last and most important witness of the day was Michael Matassa, and Doug McCann had to do his damage now if he had any chance of suggesting a government frame-up.
After being sworn, Mike Matassa informed the jury that he was the case agent in the matter at hand, and like almost every other law-enforcement witness, he said he’d been personally acquainted with the defendant for several years.
The first question from Pat Hanly seemed innocent enough, but it would prompt a lot of cross-examination. The prosecutor asked: “Now, could you please tell the ladies and gentlemen of the jury, when did Mr. Orr first become a suspect in this case?”
Mike Matassa answered, “April seventeenth, 1991.”
“And why on that date?” Hanly asked.
“Because of a positive comparison by the Los Angeles Sheriff’s Department between the known print of John Orr and a latent print that was recovered from the CraftMart device.”
“Have you had an opportunity to review the manuscript Points of Origin?”
“Yes, I have.”
“Now, how many different versions of the manuscript have you read?”
“Two.”
“What is the difference?”
“Primarily, one version is shorter, and in that version the incendiary device consists of a match attached to a cigarette. In the second version, the incendiary device consists of a glob of glue attached to a cigarette.”
“When did you become aware of the existence of the manuscript?”
“Late June or July of 1991.”
“And how did that happen?”
“We became aware of that from Fire Marshal Chris Gray of the Glendale Fire Department.”
The prosecutor then asked the witness to generally describe the story line, and Mike Matassa talked about Aaron Stiles, the arsonist, and how he travels to Fresno and sets fires in fabric stores, and also in Tulare and Bakersfield, always in foam products, using a delay device.
Then Hanly asked, “Is there any discussion in the book about what would happen if the arsonist knew that the information about the fires was being disseminated to law-enforcement agencies?”
The witness answered, “Yes, that he would then cease starting the fires.”
“Is there any mention in the book about fires and their relationship to Fresno?”
“Yes, that they are always started close to the freeway.”
Hanly then asked the witness to examine what Matassa called “the shorter version” of the manuscript, which was actually the first three chapters.
“When did you first become aware of this shorter version?” the prosecutor asked.
“December fourth, 1991,” Matassa replied, indicating the day of arrest.
The witness described the material found at the time of the defendant’s arrest, including the photos of the tracking device, paper bags, cigarettes, matches, rubber bands, and lighters. Then came questions about the interview of the prisoner at the police station.
“How would you characterize the defendant’s attitude during the interview?” the prosecutor asked.
“It was a cat-and-mouse game. He was probing, trying to see how much information we had, how much evidence we had on him.”
Of course, the defense objected to Matassa’s conclusion, and the court sustained it. But Hanly wanted to stay with it and tried to lay a foundation that would permit Matassa to characterize the prisoner’s responses.
Matassa told the jury that he’d conducted hundreds of interviews, and Hanly asked, “In fact, have you attended classes with the defendant on that subject?”
“Yes,” the witness replied.
“And in those classes, did you go over how to interview witnesses?”
“Yes, we did.”
Then, despite Douglas McCann’s objection, the court permitted the witness to answer the next question: “How did the witness respond to your questioning?”
“By asking us questions along the lines of what type of evidence we had.”
“And did he indicate whether he had actually found the tracking device?”
“Yes, he did. He said it made good grist for his book.”
“During the interview, was the defendant asked anything about explaining his conduct?”
“Yes, we asked him if once he became convinced that we did have a case on him, would he then be willing to talk to us. And he said he would not close the door on that.”
“Previous to that did the defendant say anything about lies?”
“Yes, he said he had interviewed hundreds of witnesses, and lying and guessing was part of the game. He implied that that’s what he thought we were doing.”
“That the evidence was all lies?”
“And guessing.”
The prosecution then introduced the letters to literary agents and publishers, and had Matassa read them for the jury.
When the witness was given to the defense for cross-examination, Doug McCann had what he thought was a big surprise for the witness.
“One of the very first questions the government asked today was whether John Orr became a suspect on April seventeenth, 1991. Do you recall that question?”
“That’s correct.”
“Are you sure about that? Is that what you testified to here today?”
“April seventeenth is the day that the sheriff’s department made the fingerprint comparison.”
“He wasn’t a suspect on April sixteenth, was he?”
“No.”
Mike Matassa was obviously puzzled, not only by the question, but by the obvious relish with which it was asked.
McCann then dropped the hammer: “All right, are you aware that one week prior to April sixteenth, 1991, in Atascadero, California, Ken Croke had a photographic lineup with John Orr’s photo in it? A week before this fingerprint result? You are not aware of that?”
The baffled witness replied, “That’s not possible.”
“Okay. It wouldn’t be possible that he was a suspect a week before April seventeenth, 1991, because you said he wasn’t a suspect until the fingerprint match, correct?”
“That’s correct. I put the lineup together, and I did not have it done until July of 1991.”
Then Douglas McCann didn’t just drop the hammer, he fired both barrels. “Mr. Matassa, isn’t it true that you had the manuscript prior to April seventeenth, 1991?”
“That is not true,” the defendant said.
“Okay, and it’s not possible that Ke
n Croke was showing this photograph of John Orr as a suspect in this case. That’s not possible, is it?”
The witness looked from one prosecutor to another and said, “I don’t understand how that could be.”
“Now, you are under oath here today, right?”
“That’s correct, sir.”
“Did you make an affidavit in this case?”
“Yes.”
“Did you lie in that affidavit?”
“No, I did not.”
Hanly said, “Your Honor, I’m going to object on the ground that that is argumentative.”
“I will withdraw that last question,” McCann said. “I’m sorry.” Then he came right back and asked, “Did you make false statements in that affidavit?”
“No,” Matassa said.
“You’ve seen the photo lineup?”
“Yes, I had it prepared.”
“Okay, when was the photograph of John Orr taken?”
“I would say in July of ’91.”
“Do you know where it was taken?”
“I believe it was at a FIRST meeting.”
“Therefore, you are saying it’s impossible that on April ninth and April eleventh Ken Croke was showing John Orr’s photograph in Atascadero? That’s an impossibility?”
“He was not a suspect at that time,” Matassa repeated.
There were many questions about the interview with John Orr until Pat Hanly objected that the defense counsel was “rambling at the witness.” After which McCann objected to the government’s accusing him of rambling, and it was becoming clear that the lawyers wanted to spit on each other.
McCann’s questions then tried to demonstrate to the jury that the government sometimes tells intentional lies. The witness admitted that the agents were instructed to lie to John Orr in order to obtain a copy of the manuscript through a retired arson investigator who also wrote books, and that they’d asked the San Luis Obispo police to lie about the tracking device.
The defense settled for those lies, called it a day, and the trial was recessed until the next morning.
12
ERRORS
On the morning of the third day McCann got right at Mike Matassa: “Yesterday you told us it was an impossibility that Ken Croke would’ve been showing John Orr’s photograph on April ninth, 1991, in Atascadero. Are you going to change your testimony since yesterday or is that still your testimony?”
“It was impossible for him to have been showing John Orr’s photograph prior to April seventeenth, 1991,” Matassa declared.
McCann then asked a couple of clever questions.
“You read these letters. These were letters to agents. Did you take them literally? For example, when John Orr says that there’s an arsonist and he’s a fireman. Did you take that literally that he knows there is an arsonist who’s a fireman?”
“Yes, I believe he knew that there was one,” Matassa answered.
“Did you also take literally the statement that he made, ‘And by the way, I’m not the arsonist.’ You didn’t take that one literally, did you?”
“No, I did not.”
“So you chose which portions you would take as true statements and which ones were false statements?”
“I chose that decision based upon the evidence that I’d uncovered during the investigation.”
“Including the fact that in 1989 they’d compared his fingerprints and said it wasn’t his print? Did you consider that?”
On redirect, Pat Hanly gave the witness a chance to read part of the transcription of the defendant’s interrogation. Matassa read the words of John Orr:
“I want to know what’s going on. I know how the game works.”
The longest response involved a desire to know what the task force had by way of evidence: “I want to get ahold of your reports too. If I got to do this, I’m going to have to access all the reports. So if you are charging me with certain things, I have to start working on some kind of a defense for some of this stuff. I’m trying to control myself. I’m really, really pissed. I’ve never been in this position before. I won’t close the door on anything, so I want to know as much as you got.”
Matassa’s superior, Larry Cornelison, asked, “Why? Why did you do this?” The defendant answered, “Larry, I can’t talk about it. I just can’t talk about it. I don’t know where this is going.”
When it was again his turn, McCann asked the witness: “When he says, ‘I’m not closing the door on anything,’ isn’t it possible that what he meant was, ‘Hey, look, tell me what you’ve got’? That he was trying to pursue what this was all about?”
“Exactly. To find out what we had on him,” Matassa replied.
And after a lengthy sidebar about where the defense was heading, it became time for Doug McCann to prove that Mike Matassa was lying about when John Orr had become a suspect in the Pillow Pyro investigation. McCann approached the witness with reports of photo spreads and interviews.
“Mr. Matassa,” McCann said, “have you ever seen this report which is initialed at the bottom by Ken Croke?”
“I would assume that somewhere along the line I must have seen it,” Matassa said.
“And a final document signed by Ken Croke marked April ninth, 1991. You must have seen these documents, is that what you are saying?”
“I must have,” Matassa repeated.
“I thought you said it was impossible that Ken Croke was in Atascadero before the positive fingerprint comparison? Now are you changing that?”
“No, I did not say that.”
“What did you say?”
“I said it was impossible that he was showing a photo of John Orr. I did not say it was impossible for him to have been in Atascadero prior to April seventeenth.”
“Don’t they indicate that John Orr was in a photo spread prior to April sixteenth, 1991?”
“They are incorrect,” Matassa said, simply.
“These federal government reports … let’s be clear about this, the ones in front of you, prepared by Croke, are incorrect?”
“That’s correct.”
“All four of them? And they are all dated April ninth and April eleventh? They are all incorrect?”
“They have to be incorrect, because no photo lineup of John Orr existed prior to July of ’91.”
“So, by looking at those four reports, Special Agent Ken Croke was wrong four times?”
“Yes.”
And there it was. The implication of frame-up was boiling down to a rookie ATF agent confusing the dates of two different photo spreads on reports he’d written months after the fact. The media onlookers were disappointed.
Television trials later in the decade would reveal to the general public that even the highest-profile cases are fraught with law-enforcement errors both large and small. Ken Croke was brought to Fresno to confess to his minor mistake. There was also the large error in the Pillow Pyro investigation committed by ATF agents who’d failed to properly secure the tracking device to John Orr’s car. But the next witness was about to tell the jury about the gravest error of all.
Richard Kinney was a middle-aged, balding, bespectacled employee of the California Department of Justice who must have known very well what observers in the courtroom were thinking, those who believed that John Orr was guilty of all that had been charged and later would be charged in the courtrooms of Los Angeles. Kinney had to have known they were thinking that if he hadn’t made his error, the Pillow Pyro fires would never have occurred, the College Hills fire would never have happened, and God only knew how many other fires. One had to admire the courage of the studious witness as he took the stand, preparing to fall on his sword.
After stating his qualifications as an expert with vast experience as a latent-print analyst and teacher of criminology, Richard Kinney told the jury that he’d testified as an expert in courtrooms on at least four hundred occasions.
When they got to it, Hanly asked, “What did you look at in 1989 when you made your report?”
Kinney held the photo of Marvin Casey’s latent fingerprint evidence in his hands and said, “I looked at this particular photograph along with machine copies of inked fingerprints of individuals.”
“Was one of those individuals the defendant, John Orr?”
“Yes,” the witness replied.
“Did you come up with a conclusion in 1989 as to whether that latent print matched any of the subjects you compared?”
“I did.”
“What was that conclusion?”
“I was unable to make a match against any subject. However, I felt the print was usable, meaning identifiable.”
“Now, did there come a time after 1989 where you again compared a latent print to John Orr’s known prints?”
“Yes.”
“When did that occur?”
“That occurred on November seventh, 1991.”
“And what was your conclusion?”
“At that time I was able to identify the impression with that of a subject named John Orr.”
“And what finger did the analysis reveal that to be?”
“It would be the left ring finger.”
“And can you explain why you reached that conclusion in ’91 but not in ’89?”
“Well,” the witness began, “I had a second opportunity to look at the impression. I was also given better material with which to make my examination. And I also had information that the impression was, in fact, identified by other individuals. In fact, three other individuals.”
The unfortunate witness was then handed over for cross-examination, and Doug McCann wasted no time: “Why would you care what another fingerprint expert found? You don’t have enough faith in your own abilities?”
“When a fingerprint expert is confronted, he’s got to prove the other expert wrong,” the witness said.
“You testified here that what you looked at in 1989 was a usable and identifiable print. Correct?”
“That is correct.”
“So it wasn’t that poor, was it?”
“The latent print wasn’t that poor.”
“And in your report in ’89, your conclusion was that it was a negative result?”
“Correct.”
“Your conclusion is that you did not make a mistake in 1989, or you did?”
Fire Lover Page 19
