Fire Lover

by Joseph Wambaugh

  As to the alleged conspiracy, he said, “There is no evidence whatsoever that the government had the manuscript before the fingerprint was identified. The defense has tried to paint a picture of how the government got the manuscript, and then magically, the defendant’s fingerprint was discovered on the yellow piece of paper. Well, quite simply, that is not true.”

  Referring to the fingerprint expert from the Los Angeles County Sheriff’s Department who had made the identification, he reminded them that the expert didn’t know John Orr, didn’t know he was writing a book, didn’t know he was a fireman, didn’t know anything about the case. The letters were summarized, and it appeared that they carried more weight with prosecutors than did the manuscript itself.

  Some observers thought that more damaging than the letters was the testimony about the tracking device. Hanly said, “So at some point John Orr knows he’s a suspect. Does he go to the police? Does he contact his superiors?

  “If you recall Agent Matassa’s testimony as he reread the manuscript, there was a passage about how, if the arsonist knew the government was on to him, the fires would stop. And guess what? After March twenty-ninth, 1991, they stopped.”

  The defense got its chance at 2:20 P.M., after a short recess.

  “Good afternoon,” defense counsel began. “As you are aware, the government gets two shots at closing argument. They will be able to respond to whatever I have to say here, and there are a couple of reasons for that. The court will tell you that the government bears the burden of proving the case beyond a reasonable doubt. And the fact that they argue twice, that’s simply our system.”

  When he discussed his theory that the book manuscript was in the hands of the task force prior to the alleged fingerprint match, he said, “Why is Matassa so adamant that this guy was not a suspect until April seventeenth, 1991? It’s obvious, because a week before that they have his photos in the lineup.” That, in reference to the Ken Croke transposing dates on his photo spreads.

  “How do we know if they had the manuscript or not? Guess what? In whatever month, it happened after the fingerprint match, according to their version.”

  It is possible that the defense lawyer’s fervor and machine-gun oratory covered up some of the confusing syntax as to the fingerprint itself: “Because Casey comes in here and on direct testimony, talking about the yellow paper, he’s looking over at the jury saying, ‘I remember this. I remember that.’ And I asked him some tough questions like ‘Hey, there’s no documentation.’ He doesn’t look over here. There is not documentation. Why should we say, ‘Casey, you told us the truth’? Because you happen to work for the fire department? Because you happen to look like a guy who may tell the truth?”

  He went on for a while about the framers of the Constitution, and the jury system, and how the witness Conway Lu told him that the yellow notebook paper looked different from what was presented in court.

  And then he said, “Some yellow paper was found. This is what the government presents us, this came from that fire. Now, hold it a minute there. This thing is burnt. It looks like it came from a fire. The government can say defense counsel has not proved to you that there was a conspiracy, or that someone switched the paper. Hey, that’s not our burden. It’s their burden to slam-dunk it. You have the right to question if what they are telling you is true. Remember, this isn’t Perry Mason. I didn’t bring in the arsonist. That’s not going to happen. It’s not up to the defendant to bring in the actual guy.”

  Doug McCann portrayed the witnesses who were shown photo lineups as being uncertain or wrong, and he criticized Matassa for not showing the dissimilarities in the book manuscript along with the similarities.

  As he was winding down, he returned to the fingerprint: “Total unreliability as to Casey. The guy was putting John Orr on his résumé. Are we going to believe Casey because he’s a fire captain and we are not going to believe Conway Lu? Conway Lu is telling us that the paper is entirely different from what he saw. Conway Lu tells us that there were two pieces, not one piece. Casey said there was definitely one piece.”

  About the fingerprint expert, Richard Kinney, he said, “Kinney’s conclusion in ’89 was that there were negative results. That means a finding that the print was not the defendant’s.… The bottom line is, the only natural conclusion is, he was not looking at the same latent print, because the positive match contained thirteen identifiable points at least. It was an obvious match. This taints the chain of custody again, because in the middle of all that, a guy is looking at a thing over a two-year period, and was looking at different things.

  “The only natural conclusion is, he wasn’t mistaken in 1989. He was looking at a latent print that wasn’t John Orr’s and he came to a conclusion that it wasn’t John Orr’s. He’s in the same government that all these guys in suits are in.

  “I’m just about finished here. The parties have agreed to certain facts that have been stated to you.… The government believes a man was seen at a fire scene by their witness. Defense counsel believes him. He saw the actual arsonist who was in his mid-twenties. How can you possibly say yes beyond a reasonable doubt when they are describing him in his mid-twenties? How can you say it’s John Orr when the man was in his mid-twenties and he had jet-black hair? That’s reasonable doubt as to Family Bargain Center, but also CraftMart. That’s reasonable doubt as to all of the charges. Thank you very much.”

  Assistant U.S. Attorney Carl Faller wasted no time in closing arguments. He stood and said, “There’s an old saying that’s been around the courtrooms a lot longer than I have been, that says when the facts are against me, I argue the law. When the law is against me, I argue the facts. When they are both against me, I kind of stand up and scream like hell and then I put the prosecution on trial. I put the policemen on trial. I put the government on trial, trying to deflect attention from the evidence.”

  The prosecutor went point by point through Douglas McCann’s closing argument, and then addressed the fingerprint evidence: “If it were a perfect world, this case should have been over in 1989, there’s no doubt about that. The defendant should have been convicted three years ago, but he wasn’t because Dick Kinney made a mistake.”

  When he got to the black bag seized on the day of arrest, Faller said, “Now, the idea, I suppose, is that the defense wants you to think that these items were here because the defendant was using them in training other firefighters, and there was some talk about one session that Joe Lopez went to where he was requested by the defendant to construct a device for one training session. Well, when you start to look at what’s in here and start to realize how many packs of cigarettes this nonsmoker had, he must’ve been going to train every firefighter in Los Angeles.”

  The prosecutor reminded the jury about the tracking device, and that arsons at retail stores had stopped when the defendant was informed that the Pillow Pyro Task Force was in existence.

  Referring to the manuscript, Faller said, “The Hancock Fabrics fire jumps out at you. You could see that building burning on the page. Every time we don’t want to believe that an arson investigator like the defendant would be starting fires that he’s sworn to put out, that he’s putting the very people at risk that he’s sworn to save, you keep running into another fact. And pretty soon, your common sense, your reason is just overwhelmed.

  “Ladies and gentlemen,” Faller continued, “the door is finally about to close. We don’t care why he did it. All we care about, and all you can care about, is that he did it. And the evidence has proven that he did it. And based upon that, the only rational and reasonable verdict is that the defendant is guilty of each of the charges in the indictment. Thank you.”

  During recess when neither the judge nor the jury were in the courtroom, Carl Faller turned to the defense table, and referring to McCann’s characterization of prosecutorial misconduct, said, “That was a cheap shot.”

  “Well, you’ve been making cheap shots,” McCann retorted.

  More words were exchanged
, and suddenly Carl Faller was crossing the space between counsel tables heading for McCann. John Orr stood up, and the marshals jumped up and ran forward, getting between the attorneys.

  Judge Oliver Wanger was not a big man, but he had a big voice. When he returned from lunch he looked like he’d just been told his egg salad was full of salmonella. “I’ve been told there was almost a fight in my court,” he said, glaring at the lawyers.

  Douglas McCann, who was smaller than Carl Faller, said, “He’s a big man, Your Honor. It was very intimidating.”

  Pat Hanly interceded and said, “It was nothing, Your Honor.”

  The judge let the attorneys know that it had better be over.

  Then the jury was brought back for their instructions from the judge as to the law and their duty.

  After all of Douglas McCann’s objections were made for the record, the judge addressed the jury’s deliberation time, saying, “My inclination would be to let them go at five P.M.”

  “I agree,” Faller said. “They’ve had a long day.”

  The judge turned to the defense lawyer and said, “Mr. McCann, do you have any view on that?”

  “Continuous deliberations,” McCann replied. “Through the night, whatever.”

  “Is that your preference?” the judge asked.

  Douglas McCann relented: “Whatever the Court would like to do.”

  The judge said, “Thank you, Mr. McCann. We stand in recess.”

  If Douglas McCann had been completely serious about the jury not going to bed until they reached a verdict, they’d have needed a sack full of No-Doz. The jury went out on Tuesday, July 28.

  Normally, the prosecution is not happy when a jury is out too long. On Wednesday at 1:40 P.M. John Orr’s jury wanted to see the so-called short version of Points of Origin. And they indicated that they might want to see the entire manuscript as well. It provoked legal wrangling.

  Pat Hanly said to Judge Wanger, “I don’t want the jury to think that they cannot have the full manuscript because we don’t want them to have it. It was the defense’s request to keep the entire manuscript out.”

  McCann did not agree: “Your Honor, I’m afraid for the jurors to read about a rape scene. But I’m willing to agree to let it in if they want to redact it.”

  It may have been pride of authorship, but the defendant disagreed with his lawyer and wanted the jury to read his work as he wrote it, erections and all. The judge disagreed.

  Pat Hanly eventually sat down with five task-force people. Each took thirty pages and highlighted sexual references. Every time the fictional arsonist looked at a fire, touched his member, and it got hard, somebody would redact “hard.” On the following day, the jury spent its time reading about arsonist Aaron Stiles redacted, but not erected.

  Finally, on Friday, July 31, 1992, after three days of deliberations, the jury returned with a verdict.

  The courtroom was packed with media and spectators. Mike Matassa was not there, nor was Glen Lucero, two who had worked so long on the Pillow Pyro Task Force. Lucero had been missing his wife, Martha, and had been driven home by Matassa, who thought that deliberations might go through the weekend.

  The verdict for the five counts was on two pages and in the hands of the jury foreman.

  “Has the jury reached a verdict in this case?” Judge Wanger asked.

  “Yes, sir, we have,” the jury foreman replied.

  “I’m going to ask that the clerk read the verdict,” Judge Wanger said.

  The clerk was a tall blonde named Candy. Pat Hanly saw her hands shaking when she took the two-page verdict form and began to read: “We the jury in the above-entitled case find, as to the defendant, John Leonard Orr, the following verdict: Count one, eighteen U.S.C. eight-four-four-i, arson, on or about January fifteenth, 1987, at Hancock Fabrics, five-one-seven-nine Blackstone Avenue, Fresno, California …

  Hanly heard her audible gasp as she read, “Not guilty.”

  The clerk continued to read, “Count two, eighteen U.S.C. eight-four-four-i, arson, on or about January thirteenth, 1987, and on or about January thirtieth, 1987, at House of Fabrics, five-two-six-five North Blackstone Avenue, Fresno, California … Not guilty.”

  That was the arson count where the incendiary device had not been found until two weeks after the first arson, accounting for the separate dates.

  Both John Orr and Prosecutor Pat Hanly later reported to have had the same thoughts: that both sides had stipulated that all five arsons were committed by the same person. It looked like a clean sweep for the defense!

  Pat Hanly hardly heard her read, “Count three, eighteen U.S.C. eight-four-four-i, arson, on or about January sixteenth, 1987 …”

  Pat Hanly thought: My first huge trial! My career is over!

  While the clerk continued: “Family Bargain Center …”

  Hanly looked over at Douglas McCann and John Orr and he thought he saw them rising up in triumph, as the clerk read: “One-one-six-seven North Cherry Avenue, Tulare, California … Guilty.”

  There were more than courtroom murmurs when she got to count four, the CraftMart arson in Bakersfield where Marvin Casey had found and collected the famous latent fingerprint. She said: “Guilty.” And “Guilty” again on count five, the Hancock Fabrics fire in Bakersfield.

  And after the jury left the courtroom, and everyone caught their breath, Carl Faller rose and asked that the defendant be remanded into custody pending sentencing. He said, “This being a crime of violence providing for the potential of great injury and loss of life, potential damage to property, and damage to persons, pursuant to the section, the Court must remand the defendant.”

  Douglas McCann opposed the motion, arguing that the defendant had been under house arrest and electronic monitor since December, and he didn’t believe there was a danger issue. Furthermore, he pointed out that since John Orr faced another trial in Los Angeles, it was critical that he not be in custody.

  “The crime itself, as a matter of law, is one that is a crime of violence under the code section,” Judge Wanger decided. “The government has made the motion pursuant to the law … I must and do remand Mr. Orr to custody.”

  Monday, November 2, 1992, was the date of sentencing. But before sentencing began, Douglas McCann cited several instances of what he believed were examples of prosecutorial misconduct, and he made motions for a new trial. Then McCann asked that John Orr be allowed to read a prepared statement prior to the defense lawyer’s plea for leniency, and the Court granted the request.

  John Orr stood and addressed the Court: “Thank you. As the Court is aware, I have proclaimed my innocence of these charges since the day I was arrested, December fourth of 1991. This proclamation was immediate before I ever saw any information contained in the affidavit, or had any idea what the evidence was. I knew I was innocent of any wrongdoing, and told investigators of that unequivocally at that time.

  “The U.S. Attorney’s Office was repeatedly advised of that fact and were offered an open interview with me which they refused. The U.S. Attorney’s Office was also offered a polygraphic and psychological exam, and all of these offers were refused as well. Your Honor, the U.S. Attorney’s Office was listening, but they weren’t hearing.

  “To coin a phrase that the U.S. Attorneys proclaimed as my admission of guilt uttered by me at an interview: ‘I won’t close the door on that.’ I didn’t close the door then and even now I welcome any discussion with their investigators about this case.

  “The Los Angeles U.S. Attorney’s Office has taken a similar closed-door policy, and they would surely be surprised at irrefutable information they could have accessed months ago, which could have saved them thousands of hours of investigation. This information proves my innocence in Los Angeles, but was overlooked in haste after reading the manuscript.

  “There was never any presumption of innocence. The presentation of my manuscript as a journal of my fire-setting activities is fictional, just as Points of Origin is fictional. In the manuscript there ar
e twenty-nine fires described. Only three bear any resemblance to the actual series of fires that occurred in Fresno in 1987. Only three out of twenty-nine occurred in retail establishments. The rest are brush fires set in alleys and garages, the more common targets of the type of arsonist I portrayed in the book.

  “The uncanny similarities that the U.S. attorneys portrayed as evidence against me are merely facts that were passed along among investigators in meetings in 1987 and subsequent to that date, and later inserted into my manuscript. Simple research. As I stated in solicitation letters I sent to publishers: Points of Origin is simply fact-based fiction.

  “I believe the Court’s and the U.S. attorney’s perception of me is that I’m a reasonably intelligent man, respected in the fire service with an unblemished record until December of 1991. Certainly not the kind of person that would create havoc-by-fire in the San Joaquin Valley, and keep a journal of fire-setting experiences, write a manuscript chronicling the events, and then attempt to have it published. The National Enquirer couldn’t have come up with a more ludicrous story. I’m not a fool.

  “The fingerprint issue. Why was it that out of the charges against me, only in that one was the chain of custody a serious problem? Exculpatory evidence was discarded shortly after discovery, expert witnesses could not tell what they compared, and the print was clearly not mine in the 1989 comparison. Assuredly there is reasonable doubt as to its value in 1992.

  “I was found not guilty of two counts, one of which was an attempted arson that occurred two weeks after the conference in Fresno. This certainly substantiated the fact that these fires were perpetrated by the same person, possibly someone local.

  “Your Honor, my life has been dedicated to the fire service and law enforcement for over twenty-two years. I have personally been trapped by fire and smoke on three occasions. I know the panic, the terror, and the helplessness that even a well-equipped professional firefighter can experience as a fire advances uncontrolled.