“I know how those witnesses felt. My heart went out to them. I don’t wish that kind of experience on anyone, and I feel helpless and frustrated because the person responsible remains at large. I have fought fires, performed rescues, and carried the bodies of men, women, and children who have died as a result of fire and smoke.
“I have been devastated by this misguided investigation. But beyond that, the fire service has suffered with the perception that they were betrayed by one of their own. Your Honor, they have not been betrayed. They and I have been victimized by a total lack of communication and overzealous investigators. My personal reputation, my entire career speaks for itself and I stand by it. I truly hope that justice will ultimately prevail at least for the sake of the fire service.
“Your Honor, thank you for the opportunity to be heard. Whatever your decision is on my sentencing, I will continue to abide by the Court’s orders as I have from the beginning of this personal nightmare, and continue to fight to prove my innocence.”
When Douglas McCann had the opportunity to plea for his client, he said, “I saw a jury convict Mr. Orr. It’s not surprising that they convicted him, because of the fingerprint evidence. That was the entire case.… I don’t know if I stand here next to a man who did not commit these fires. You have just heard from him telling you that he didn’t start the fires.… If John Orr was telling the Court that he was responsible for the fires, I could say he’s accepting responsibility, showing remorse, should receive something other than the maximum. He has no prior record.… But I’m not in that situation right now.
“In terms of the psychiatric report, the doctor never really performed an evaluation, a psychiatric diagnostic study. He just basically said, ‘If this man is guilty of these fires, given everything I know about the case, he’s obviously troubled. He obviously has a mental problem. He obviously would benefit from some type of care.’
“I don’t know how in the world this Court can overlook that. I think the position of the U.S. attorneys here in Fresno is to treat him like a common criminal.… In sentencing we always need to consider motive. Here I am talking with an assumption that he did it, and I’m standing next to a man who told the Court he didn’t do it. It’s a difficult argument for me to make. I can simply say that he’s got no prior record.
“Joe Lopez testified that he went out and bought food for John Orr’s family. That’s a reflection not so much on Joe Lopez, but a reflection on John Orr, that there are people who care about this man.
“In fact, there are fire investigators here to observe his sentence. It actually turns one’s stomach. I don’t know why they are enjoying it. When the jury came back with the verdict of guilty, was that a day of celebration? That was a very sad day for everybody involved.”
Judge Wanger interrupted the defense lawyer’s plea at this point to say, “It is a public forum. These proceedings are open to all.”
“I have no objection to them being here,” McCann continued. “I anticipate the U.S. attorney asking the Court to give John Orr the maximum sentence. To max him out for as long as possible with no inquiry as to why this happened. In fact, Mr. Faller said, ‘We don’t care why it happened. We got our guy.’
“Motive is a factor that should be considered if the Court is going to assume that he’s guilty based on the jury’s finding. We have to ask ourselves, why did these fires start? Did John Orr get any benefit out of these fires? If there’s no motive then we have to look to the psychiatrist who said that if you make that assumption, then there’s only one conclusion: that you have some type of pathology.
“One other small point: The probation officer indicated that John Orr has nothing redeemable about his life because he’s been living a fraud all these years. Because he’s an arsonist. As the Court is aware, he has been a well-respected arson investigator and instructor. At least on that level, there are people that benefited from knowing him.” McCann suddenly looked to his client, then said to the court, “One second.”
When John Orr and Douglas McCann finished conferring, McCann said, “I would submit it, Your Honor.”
The defendant decided that his lawyer had said enough.
Patrick Hanly said to the court, “Your Honor, it is the government’s position that the Court should follow the probation report’s recommendation, and sentence Mr. Orr to the thirty-year maximum sentence, ten years on each count, which means that Mr. Orr will be eligible for parole in as little as ten years.
“All the Court has to do is remember Mr. Orr’s own words about the panic, the terror, and the helplessness that is felt by the victims of arson fires. Who better than this man right here to know the danger that an arson fire creates, then come into this court after a jury has found him guilty, and proclaim his innocence. And proclaim that he has been set up by the government. It’s ludicrous. He should get the maximum sentence, thirty years. He should be sentenced under four-two-oh-five-a, which requires him to spend a minimum of ten years, and the Court should order him to pay a fine.
“And it’s the government’s understanding that he has now sold the rights to his novel, I believe to HBO, and I would like the Court to order restitution to be paid by the defendant.”
Hanly was referring to a sale for which John Orr was paid fifteen hundred dollars against fifteen thousand dollars if it was ever produced.
“And furthermore, Your Honor,” Hanly continued, “this is somewhat of a day of celebration because a very dangerous man is no longer on the streets. And law enforcement does celebrate on the day when dangerous criminals are convicted and put away, as required by the law. Thank you.”
When Judge Wanger was ready to sentence the defendant, he said, “I have read very carefully all that you have written, and analyzed what you have said. I know that you stand here absolutely maintaining your innocence. I believe in the jury system, and I believe in the jury. In this case, there was sufficient evidence to convict you, as the jury did.
“You chose in your own defense not to proclaim your innocence personally. That was a strategic decision and a choice you made not to tell the jury, ‘I didn’t set these fires.’ That choice was yours and it’s respected. However, the evidence was substantial, and the evidence was sufficient to convict you.
“You are guilty of each of these counts, and what I must say to you, as a sworn law-enforcement officer, is that the proof of your guilt and the fact of your guilt then establishes that you betrayed the highest trust that was placed in you to protect the public from the terror that you have described, and to care for them, and to use the great skill and the respect that was afforded you in your profession to do the right thing and not the wrong thing.
“I do find that you are a danger to the community and that you are someone who must be incarcerated, and there must be an example made in this case.… It is the judgment of this Court, Mr. Orr, that as to counts three, four, and five, you are hereby committed to the Bureau of Prisons to be imprisoned for a term of ten years as to each count, each count to run consecutively with the other. I’m sentencing you pursuant to eighteen U.S.C. section four-two-oh-five-a for a total of thirty years. You shall pay restitution in the amount of two hundred twenty-five thousand nine hundred seventy-one dollars to the victims in this case as will be specified by the probation officer.”
Many observers expressed the wish that when the judge was proclaiming his belief in the jury and the jury system, he would’ve enlightened them as to how the defendant could have been acquitted of two counts and convicted of three, after both sides stipulated that the same fire setter had committed all five arsons. Some said that the verdict validated those who had been calling for a new system composed of professional jurors.
Douglas McCann asked for bail, which was denied. The defense counsel then said of an appeal, “Let the Court know I will be filing the notice for him, and I will no longer be on the case after that. It will be a pro per notice.”
John Orr later wrote, “There was bitterness on Doug’s part. We’d been
through a lot and he thought I was disloyal. He wanted to be part of the L.A. case, but I fired him.”
Douglas McCann had expressed revulsion at the joy he saw in the faces of task-force members who were there in court for John Orr’s sentencing: Glen Lucero, Mike Camello, Tom Campuzano, firefighters all, they were there. Mike Matassa was there representing ATF, along with Special Agent Chuck Gaylan of Fresno, who had helped Marvin Casey secure the ten fingerprint cards examined by Richard Kinney at the Department of Justice.
There had been another man there in court during the defense’s case, perhaps unnoticed by John Orr and his lawyer. He was very interested in the defense strategy and in government mistakes like the one made by the fingerprint expert. This man was considering ways that he could deal with a law-enforcement error even more egregious. He was hoping one day to prove to a jury of twelve Los Angeles citizens that a catastrophic fire long ago, deemed an accident, was actually an arson. A fire that had killed four human beings, including a small child.
Deputy District Attorney Michael J. Cabral was there contemplating prosecution that could put John Leonard Orr on death row and take away his life.
14
STRANGE FISH
The convicted arsonist had experienced severe depression after his sentencing. “Utter devastation,” he called it. However, the federal facility to which he was sent, Metropolitan Detention Center in downtown Los Angeles, was about as comfortable as such places get. There were pool tables and other recreational facilities, the food was okay, and it wasn’t overcrowded. He’d been there for a short time just after his arrest, and some of the inmates he’d met then were still present to welcome him back.
The only frightening moment came not from an inmate but from a barber, a student barber in the prison barber shop. The prisoner had been told that his beard would have to go, and he had to face a shaky kid with a straight razor who had never shaved a beard and couldn’t grow one. The senior barber saved bloodletting by doing the job himself.
Inmate Orr had to spend some time in the hole after his arrival. As a former law-enforcement officer, he was required to sign a waiver before they’d release him into the general population, and he was quick to sign. He figured if he hadn’t gotten his throat cut in the barber shop, he might as well risk it in the yard.
Since he was so near home, he received plenty of visitors, and because it was such a good facility, his depression gradually began to abate. His appeal gave him hope. His primary concern had to be in choosing a lawyer to represent him in the coming indictment for the Los Angeles arsons. If his appeal failed he couldn’t afford another conviction, not if he hoped to be paroled in his first year of eligibility—the year 2002.
It had been with trepidation that Assistant U.S. Attorneys Stefan Stein and Walter Brown submitted their brief to the U.S. Court of Appeals for the Ninth Circuit—“the infamous Ninth Circuit,” as it was called by law-enforcement officers who believed that it was packed with liberals and had a defense bias in criminal matters.
Stein and Brown were at last appealing the decision of District Judge Edward Rafeedie for excluding John Orr’s novel and his letters to publishers and agents, because the prejudicial effect outweighed their probative value.
There were three Ninth Circuit judges sitting on the panel when Stefan Stein stood before them with an opening he’d rehearsed aloud until even Mike Matassa could’ve delivered it. He wanted to point out, in effect, that the purpose of evidence is to prejudice a jury. One of the judges on the panel was Steven Trott, a former member of the Highwaymen, the sixties singers who’d had a couple of big hits, including “Michael Row the Boat Ashore.”
As Stefan Stein stood before the appellate panel, preparing to row his own boat, Judge Trott said, “Sit down, counsel.”
They didn’t want argument. Their decision read:
We respectfully hold that the district court abused its discretion in excluding this evidence.… The manuscript and letters are highly probative of modus operandi and thus the identity of the arsonist.… Therefore, having carefully evaluated all of these factors, we hold that the evidence … was properly admissible because it was so highly relevant to proof of modus operandi and identity. REVERSED.
It meant that Stefan Stein could look forward to trial. After having had his case “yanked away,” as he put it—after having “his world turned upside down” when John Orr went to Fresno—after all that, he was finally going to trial in Los Angeles. His colleague Walt Brown would not be there for it, having gone on to another assignment, but Brown had been replaced by another bright and energetic young prosecutor, Debra Yang.
The Pillow Pyro Task Force was kept as busy as ever after the Fresno trial was concluded, for now it was time to prep the L.A. witnesses and get them ready. Mike Matassa had been promoted to resident agent in charge of the Riverside office of ATF, and had to split his time between there and assisting with Pillow Pyro business. And there was a lot of business to do, even through the holiday season and into the new year of 1993.
The assistant U.S. attorneys had decided to take eight counts of arson to the federal grand jury: three from the Central Coast fires of 1989, the rest from the Los Angeles series. The three on the Central Coast were those that took place on the same street in Atascadero on March 9, 1989, during a three-hour spree: Pacific Home Improvement Center, Cornet Variety, and Coast to Coast Hardware.
The remaining five counts named the fires at People’s Department Store in Los Angeles; Builder’s Emporium in North Hollywood; D&M Yardage in Lawndale; and Stats Floral Supply and Thrifty Drug and Discount Store, both in Redondo Beach.
Stefan Stein and Debra Yang had studied the transcript from the Fresno trial and had their own strategy planned, with some improvements. They were preparing the witnesses for what would surely be a media event even bigger than it had been in Fresno, because John Orr was a local figure in both the fire-fighting and law-enforcement societies.
There were stories and TV coverage about the coming trial. People magazine ran a story on John Orr with a photo of him in court. On the opposite page was one of him in action at the scene of a building fire.
His wife Wanda told People: “He’s never been anything but a kind, loving and trustworthy person.”
Peter Giannini came highly recommended to John Orr by several people familiar with Los Angeles criminal defenders. He was a forty-five-year-old trial lawyer with nineteen years of legal experience. But lawyers like Giannini did not come cheap, and Wanda had to mortgage her home to pay his sixty-thousand-dollar fee. The defense lawyer spent more than a month examining the eight counts of arson facing his client, then came to him and warned, “If we fall even on one count it could double your sentence. Right now you’re facing ten years behind bars.”
The matter seemed straightforward to Giannini. His client would plea to the three arson counts in Atascadero, which had no significant damage involved, thus no civil liability for restitution.
The defendant’s version of the plea bargain differs from that of his attorney. John Orr maintained that he’d paid his lawyer and wanted to go to trial to make him earn it. He claimed that when the lawyer broached the idea of a plea bargain that might not increase his time served by one day, John Orr said, “Fuck that! I’m not taking a plea bargain!”
The defendant remembers his lawyer saying, “I see no chance of a successful appeal on the Fresno case. Take the deal instead of rolling the dice with the jury. It’s the plea bargain of the century.”
As it happens, it might have been just about impossible to find a lawyer who would have disagreed with the logic at that time. Even John Orr later admitted that pleading guilty to a few counts of arson had started to seem sensible. He told his wife: “I’d do ten years for a crime I didn’t commit before I’d see you lose your house for attorney fees or for expenses.”
He reported that for those reasons, he would take the deal even though he was an innocent man and the victim of a government frame-up.
Four day
s before trial was to commence, Peter Giannini contacted the U.S. Attorney’s Office to speak about a plea bargain. Stefan Stein was astounded. It was one of those moments when one doesn’t know whether to laugh or cry. He probably wanted to cry after all the hard work, after the disappointment of having his case yanked away and sent to Fresno, and after his successful appeal to the Ninth Circuit.
But there were other considerations. The task force was happy when they heard about the offer. The man who accused them of conspiracy, of a government frame-up, would now plead guilty. It was their vindication.
And if they turned down the plea, went to trial, and convicted him of more counts, what was Judge Rafeedie likely to do when it came to the imposition of sentence? The U.S. Attorney’s Office believed that whether the defendant pled guilty or was convicted at trial, the sentence would most likely run concurrent with the sentence he was serving. In other words, his actual prison time would not be increased by one day, so why go through a fruitless and expensive exercise?
It made sense to Stefan Stein, who’d sweated for weeks over a beautiful opening statement that made the task force proud. It made sense, yes, but he’d done so damn much work.
The U.S. Attorney’s Office made its decision within twenty-four hours. They would accept a plea bargain to three counts of arson with certain conditions attached. Stefan Stein wanted the defendant to plea to at least one count of arson in his own backyard, which meant one from the Los Angeles series.
Stein was impressed by John Orr’s attorney, although he didn’t know much about this trial lawyer who mostly practiced in state courts. Stein found Giannini to be open and reasonable, and Stein was willing to accommodate the defense in choosing one count of arson from the L.A. series that wouldn’t involve restitution. The defense chose Builder’s Emporium in North Hollywood, where an incendiary device had been found, but only sixty dollars in damage had been done.
Fire Lover Page 22
