“I did.”
“You did make a mistake in 1989?”
“Oh, yes,” the beleaguered witness repeated.
“Is that the first time that’s ever happened?”
“No.”
“Happens all the time?”
“No.”
“It’s only happened once in twenty-two years?”
“To my knowledge it’s happened two different times,” the witness replied.
“How many prints have you looked at over all those years?”
“Millions,” the witness answered, wearily.
Millions. The courtroom observers could only feel for the avuncular, bookish man on the witness stand. Could only imagine him at a table, maybe wearing an eyeshade—Bob Cratchit on Christmas Eve—day after day, staring at loops, whorls, and arches. And breaking those down to ending ridges, bifurcations, trifurcations, bridges, spurs, and the rest of it. For twenty-two years. Millions. He’d examined millions of fingerprints! And this had only been his second known mistake.
But this one was a pip.
On the fourth day the prosecution had no more witnesses, but before the defense witnesses could be called there was more bickering at the bench, and it was growing ever more hostile as the trial wore on. It quickly became personal when Doug McCann said, “Excuse me, Your Honor, the U.S. government is laughing as I’m speaking. I find that rather disrespectful.”
When all of the lawyering was concluded at the bench, the defense called a customer of Hancock Fabrics who had been there on that cool winter evening when the terrifying fire struck. And for the first time, the jury would be given an idea of just how fast and violently a fire can build when given a fuel load of foam products.
Customer Mary Dummler described it vividly: “I saw a little puff of smoke in the back of the far corner. And it went from a kind of a wispy circular smoke suddenly to dark gray. You know, swirling puffy smoke. And then that exploded into flames!”
“Did you run out of the store then?” McCann asked.
“Not immediately. I said, ‘There’s a fire! That’s a fire in the corner!’ And it just started to jump. There were children in the store at the time. A mother with children, and the flames just went so quickly. And they literally jumped to the next row of fabric. And jumped! And within minutes the whole store was in flames and the lights had gone out and people were screaming and calling for help!”
There were a few chills up the back on that hot July afternoon in Fresno. It began to register in the minds of the courtroom throng just how it is possible for people to die a horrible death while shopping in a well-lighted, well-tended retail store. Where there is safety and security one minute, and the next … The astonishment was still in the faces of those witnesses who had been in the store. How could that terrible thing move that fast?
Defense witness Joe Lopez was six foot three, very fit, with salt-and-pepper sideburns: a recruiting-poster firefighter. He testified to having ten and a half years of fire-fighting experience, and more than a year as a full-time arson investigator and partner of John Orr.
The witness testified to the training sessions that he and his partner had conducted with incendiary devices made from a cigarette and matchbooks. And then came questions about the black bag that the task force had seized on the morning of John Orr’s arrest.
“You had been inside the bag at some point?” McCann asked, trying to show that had there been anything sinister in that bag, the witness would have seen it.
“Yes, I had.”
“How did that occur?”
“During two of the classes, I believe, we were having copies made at a copy center and John had forgotten his checkbook, which was located inside the bag in the trunk of his vehicle. He asked me if I wouldn’t mind going out and getting the checkbook. That happened several times. And there was one other time that I can remember when we were at the police department and he needed some papers that were in there, so I volunteered to go out and get those for him.”
“Now, what was your relationship to John Orr? Professionally?”
“We spent the majority of the workdays together, and we also spent a lot of off-duty time together preparing for the classes. And socializing at times.”
“Was your office right next to his?”
“We had two desks in the same office facing each other.”
“Was he your mentor, so to speak?”
“Well, he was training me, yes.”
Then McCann got to the items that had been found in the bag. “Have you ever seen John Orr collect fire-scene evidence with brown paper bags?”
“Yes.”
“Have you ever seen John Orr construct any incendiary devices that included yellow lined paper?”
“No, I have not.”
“At some point in time, did you ever become aware that John Orr was writing anything?”
“Yes. At times he would have portions of his book on his desk, and I think I may have seen it and asked him about it.”
When Pat Hanly took over, he bored into the credibility of the witness.
“So is it your testimony today that you have been inside Mr. Orr’s black canvas bag, Mr. Lopez?”
“Yes.”
“Do you recall testifying at a hearing on December tenth, 1991, in Los Angeles District Court?”
“Yes, I testified during that time period.”
“Do you recall the following question being asked of you: ‘Are you aware that Mr. Orr has a black canvas briefcase?’”
“Yes.”
“Do you remember the following question: ‘Have you ever looked inside that briefcase?’”
“Yes.”
“And do you remember the following answer: ‘No, I have not’?”
“Yes.”
“Now would you like to change that testimony today?”
“No.”
“You are aware, Mr. Lopez, are you not, that you are under oath today as well?”
“Yes. May I have an opportunity to explain my reason?”
“Go ahead.”
“When I was asked at that time, I felt that the question was, had I ever gone into John’s bag. The answer is no, I had never gone into John’s bag on my own. After that I was trying to remember. I couldn’t remember the specific times or the consequences if I ever had gone into the bag. And I recalled that there were several instances when it happened. At that time, I called up Stefan Stein from the U.S. Attorney’s Office and told him yes, I do remember being in John’s bag several times. And I also called up Douglas McCann and relayed the same information to him.”
“But on December tenth, 1991, when you were asked point-blank under oath, ‘Have you ever looked inside that briefcase?’ you said, ‘No, I have not.’ Is that true?”
“That’s true.”
“But then after that was over, you had a sudden epiphany and realized, ‘Oh, my gosh! I have looked in that bag before!’ Even though you were asked twice and said ‘No,’ twice, under oath. Is that correct?”
“Yes.”
“And do you think your testimony today is influenced in any way by your relationship with the defendant?”
“No, I don’t.”
“You are a close friend of his, is that correct?”
“I’m a friend of John’s, yes.”
“Have you ever undertaken any efforts whatsoever since his arrest to assist him in his defense?”
“No, I’m not part of John’s defense team at all.”
“No, but I mean have you done anything, provided funds or anything?”
“I provided funds to the John Orr family, to John Orr and his wife, for food, yes.”
“Did he ever tell you that he considered himself a suspect at one point in the investigation?”
“Not that I can recall.”
“Now, are you aware of any investigation regarding a firefighter who is also suspected of being a serial arsonist?”
“No.”
“You would take steps, would you not,
to investigate this firefighter/serial arsonist?”
“Yes, I would.”
“If you found yourself to be in a situation where you were a suspect in an arson investigation, Joe Lopez, would you contact somebody to find out what was going on?”
“Yes, I would.”
“If you found a transmitter on the bottom of your car and believed that you were a suspect, and you had been contacted by ATF on two previous occasions about arson fires, would you then call ATF?”
“Not necessarily.”
“That wouldn’t cross your mind?
“Well, we have contact with a lot of various agencies, and we might have contact with L.A. City, L.A. County, or ATF during that time period too.”
“Sorry, you must have misunderstood me,” Hanly said. “You are being followed. You have a tracking device on your car. And you find out that the frequency number and the PIN number belongs to ATF. And you were previously contacted by two ATF agents, one of whom just happened to leave his card. Are you going to contact ATF, and ask why his tracking device is on your car?”
“Most likely. Yes,” the witness said.
13
VERDICT
Ironically, Douglas McCann was late for court on day five, delayed for three hours because of a fire on the freeway. And it had not been set by the defendant.
The first issue was facial hair. The time had arrived for the defense to introduce evidence that the defendant had a full beard in January 1987, and could not possibly have been the person with the “Don Johnson” stubble whom witnesses had chosen from the task-force mug shots. The defense had photos to prove their contention, in an album that the prosecution had not seen.
Hanly said to the judge, “I think the problem here is the fact that, mysteriously, a photograph shows up in this scrapbook which just happens to have ‘one-seventeen-eighty-seven’ written on it. It seems a little strange that all of a sudden this photograph would come up, not having been received in discovery, and just happened to have been taken the day after the January sixteenth, 1987, fires.”
But prior to the appearance of Wanda Orr to testify about the photos, the defense called Conway Lu, the former employee of CraftMart in Bakersfield, where the crucial fingerprint evidence had been found. Referring to arson investigator Marvin Casey, the witness said, “The guy came in and was digging around and he says, ‘Well here it is.’”
“Then what happened?” McCann asked.
“I said, ‘What did you find?’ And he pulled out a book of matches, a cigarette butt, and some burnt paper.”
“Was he then talking to you and showing you what he’d found?”
“He explained how it worked because I asked him.”
“You said some burnt paper. What color was it?”
“Yellow, if I recall.”
“Did he show you the cigarette?”
“It was a cigarette butt that had been scorched.”
“And he showed you a matchbook?”
“Yes.”
“In terms of the yellow paper, was it one piece or two pieces?”
“It was two pieces that were … well, that looked like they should’ve been one piece at one time.”
“But it was in two pieces?”
“Yeah.”
This witness was perhaps the last and best hope to perpetuate the idea of a government frame-up. Marvin Casey had testified that the notebook paper was in one piece when he’d found it, and two pieces when it came back from the lab after processing. And he’d said nothing about a matchbook, which ran counter to the government’s description of an unusual signature device.
Hanly’s cross-examination went to the crux of the testimony: “You said that the Bakersfield fireman showed you the actual device, is that correct?”
“He kind of explained how it worked.”
“And he showed you some yellow lined paper?”
“Some paper, a book of matches, a cigarette butt.”
“Was it a book of matches or was it just individual matches and a cigarette butt?”
“If I recall, it was a book of matches.”
“But are you sure about that?”
“It’s been five years. It’s hard to say.”
Hanly then showed the witness Marvin Casey’s photo of the incendiary evidence he’d recovered.
“Does that look like the paper you were shown on the date of the fire?”
“It’s hard for me to say. It’s been five years. It could be.”
“So that could be the paper you saw on the day of the fire. Is that correct?”
“It could be.”
“That’s all I have, Your Honor,” Hanly said.
Doug McCann tried to rehabilitate his witness with a series of short questions as to what he did recall.
“Do you recall there were dried flowers in the area?”
“Yes.”
“Do you recall the name of the person who yelled out, ‘Fire’?”
“Yes.”
“There’s a lot you recall about this, correct?”
“True.”
“A lot of detail. In fact, you said you recalled a matchbook?”
“I seem to remember a matchbook, yes,” the witness said.
It was time for the beard. Wanda Orr, the fourth wife of the defendant, took the stand. She was a petite woman, a few years older than John, an ethnic Hawaiian mix of Chinese and haole, soft spoken, wearing little makeup.
McCann’s first question was, “Mrs. Orr, do you remember the date that you were married to John Orr?”
“November twenty-first, 1986,” she replied.
And then McCann showed Wanda Orr the wedding photo of John with a beard, and asked, “Did you go on a honeymoon?”
“Yes, we did,” she said.
McCann also showed a photo taken in December of that year, and the beard was there.
There was a sidebar with argument about a date written on the back of the crucial bearded photo, really about when the date was put there, the date being January 17, 1987, one day after the CraftMart fire.
When they got back to the witness, McCann asked, “What do you recognize about that photograph?”
“John, the house, the furniture on the lawn. We were having a garage sale.”
“When was that?”
“I believe it was on the seventeenth.”
“How is it that you remember it was January seventeenth?”
“This is from my album. I always date everything that goes into the album.”
When it was time for cross-examination, Carl Faller took over: “Now, Mrs. Orr, do you recall specifically that the garage sale was on January seventeenth, 1987?”
“Yes, sir.”
“How is it that you recall that?”
“Because the album states that.”
“Right. But do you remember?”
“I remember the garage sale, yes.”
“Well, do you remember the date?”
“It was a long time ago.”
“I agree. So the only reason you are saying it’s January seventeenth, ’87, is because that was the date written in the album. Is that correct?”
“That’s correct.”
Then Faller carefully suggested that somebody had removed the photo from the album in order to add a date that would alibi the defendant: “Now, this particular photograph was taped into the album. Around the edges of the photograph, it appears that at one time it was glued into the album. Would you agree that there is residue of glue on the back around the edges?”
“Appears to be, yes,” she said.
“Would it indicate that at one time it had been glued into the album, then removed and taped in the album?”
“No.”
“Well, you wouldn’t put both glue and tape on at the same time, would you?”
“No.”
“How long did he have the beard after you were married?”
“I would just guess maybe February …”
McCann interrupted to say, “I
don’t want her to guess, Your Honor.”
Faller said, “Well, he may not want her to, but she can give her best estimate of what she recalls.”
“You may give your best estimate, Mrs. Orr,” the judge said.
“February, March,” she said. “I’m just guessing.”
About the facial hair, the government called a woman as a rebuttal witness who allegedly had had dinner at the 1987 conference with John Orr during a time when he was “happily” married. Apparently, neither the government nor the defense cared to get into details of their evening together.
The rebuttal witness was a claims adjustor for a major insurance company. The questions to her were very brief and to the point.
“Have you had occasion to go to conferences concerning the subject of arson?” Carl Faller asked.
“I have actually only gone to one seminar,” she replied.
“When was that?”
“It was in January 1987.”
“Where did that take place?”
“In Fresno,” she said.
“And while you were at that conference in January 1987, did you see the defendant, John Orr?”
“Yes.”
“And when you saw the defendant Orr at the conference, did he have a full beard?”
“No,” she replied.
“Thank you. No further questions,” Faller said.
The judge said, “Mr. McCann?”
“No questions, Your Honor,” said Doug McCann.
At 1:00 P.M. on the fifth day, the government addressed the jury with a closing argument. Patrick Hanly began his summation by reminding the jury that the defense agreed in opening statement that one person started all five fires: the two in Fresno on January 15, 1987, the one in Tulare on the sixteenth, and two in Bakersfield, also on the sixteenth.
It didn’t take the prosecutor long to get into the defendant’s manuscript, wherein his fictional arsonist started fires in a fabrics store that he called “Fabric Plus.” Hanly also reminded the jury that in the novel there was a line which read, “Most of the fires started just off of the freeway,” as did the actual fires.
Hanly described how the fire at the House of Fabrics fit the scenario of the fictional fabric store in the novel, and he reminded the jury that the defendant had checked out of his hotel at 6:51 A.M. on the last day of the seminar, and had all day to cruise down the freeway setting fires. With each and every point he made, Patrick Hanly would point to blowups of the text from Points of Origin, emphasizing again and again that the book was really not a novel but a diary.
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