When the jury got seated, the judge got all atwitter. He said, “My goodness, Number Two! Are you okay? I want to state for the record that Number Two is wearing a large bandage over his left eye. My goodness! Memorial Day was not good to you, apparently?”
“No,” said Juror Number Two.
“Golly!” the judge said. “Well, I certainly appreciate your being here. Can you tell us what happened?”
Juror Number Two said, “My two-year-old … there was a book we were reading, and he turned the page, and the tip of it went right up in the top of my eye. So I went to urgent care and they said I need to keep the patch on it for at least forty-eight hours. I told my fellow jurors I didn’t want to, you know, take a day off or anything.”
The judge then told a story that “amused” him, about long civil cases when the bailiff would go through jurors’ notebooks after trial. He said they’d found that some of the jurors “had basically been engaged in what might be called doodling … And so, I guess my point is, it is inappropriate to be drawing pictures, or maybe working on crossword puzzles, or playing games, or anything like that.”
Nonlawyers could wonder why the judge didn’t ban hand puppets, since he was talking to them as if their education had peaked at traffic school.
When Mike Matassa got turned over to Peter Giannini for cross-examination, the defense lawyer did the best job yet of attempting to chip away at the long list of charged and uncharged fires to which the jury had been exposed. For example, he tried to point out that the L.A. fire series sometimes had suspect descriptions that did not resemble John Orr.
Moreover, he made the witness repeat statements by his boss during the interrogation of John Orr, whereby Cornelison offered a carrot by saying, “We’re not going to charge you with the College Hills fire,” suggesting that the feds figured there wasn’t much of a case, and yet here he sat in a state trial for those very same crimes.
Giannini attacked the importance of the incendiary materials found in John Orr’s briefcase, extracting testimony that John Orr had explained that the materials were for use in his training class. And the attorney for the first time elicited admissions that the task force had sent questionnaires to people who’d taken training classes from John Orr, verifying that he had indeed conducted training with similar devices, if not the exact device.
Another tidbit that Giannini brought out was that a month after John Orr’s arrest, another search of his office led to the discovery of a piece of paper with the notation “3:30 Stevenson School,” which might help with a time-and-place alibi for the Warner Brothers Studios fire, if the jury could be persuaded that the undated note carried enough weight.
Giannini’s approach was to intimate that John Orr had already been convicted of, or pled guilty to, all of the arsons he’d ever committed. And that this state case was an example of the authorities attempting to clear up everything on the books, including the Ole’s fire of 1984, by ganging up on an exposed and vulnerable defendant.
The lawyer made Mike Matassa concentrate on the differences between things portrayed in the manuscript and in this case, rather than on the similarities. The judge agreed to let Peter Giannini effectively take the witness through many passages in John Orr’s novel wherein the author had portrayed fires that did not resemble anything that the task force had investigated, indicating that John Orr’s novel was not some sort of diary, as the prosecution claimed.
When Mike Cabral got Matassa on redirect, he had the witness clarify for the jury why his task force had never investigated or interrogated the defendant regarding College Hills and other brush fires, explaining that they were not federal crimes. And Matassa related that the statute of limitations had expired on Ole’s insofar as being a prosecutable arson in federal court, where there was not even a federal murder law, so all of that had to be dumped onto Mike Cabral and his task force.
After Mike Matassa was excused forever from the prosecution of John Orr, a surprising development in the College Hills case was announced during recess by Sandra Flannery. The College Hills apartment dweller who’d seen a man near the fire’s area of origin, a man who’d warned people in the apartment building to get out, was back from the Midwest. And she was ready for the very first time to state that the man she’d seen was the defendant.
This stunning revelation had come about during a phone call from Sandra Flannery, wherein the witness said that she’d never seen a news photo of the defendant even by the time she’d testified before a grand jury, but after that, she’d happened to see his picture in the newspaper and “her hair stood on end” because she’d realized that they’d caught the suspect.
The judge made the obvious comment out of the jury’s presence: “The thing that occurs to me is that this is kind of a two-edged sword for the people. I mean, the defendant interviewed her. He was in her bathroom. Why in the world didn’t she say at that point, ‘This is the guy I saw over there at the fire scene?’ I’m not sure, were I prosecuting this case, I would want to get into it. Eight years later he has a lot less hair. He’s wearing glasses. You expect her to make an identification?”
When the witness took the stand, Sandra Flannery asked, “On June twenty-seventh, 1990, at approximately three-thirty P.M., did anything happen outside your apartment?”
“Yes,” the witness said. “I looked out my bathroom window and I noticed a car parked on the side of the road facing north. And I saw a man get out and walk towards the hill and sort of lean over towards the hill. And I thought, well, maybe he lost something. After I got into the living room I heard a male voice knock on the door of the apartment below me, and he said, ‘Your hill’s on fire!’ And I saw a ball of fire coming toward me and one joining it, and all coming towards the building!”
As to her failure to recognize the defendant when he had actually entered her apartment that day, Sandra Flannery asked the witness, “Do you remember if anyone was with Officer Masucci when he was there in your apartment?”
“That I can’t recall,” the witness said. “I just can’t recall it.”
“At some time after you testified in the grand jury, did you see something in the newspaper?”
“I recall there was a picture that they had of him. About the person that had committed the fires.”
“When you saw the photograph, what was your initial reaction?”
“I was kind of in shock. It kind of threw me in a bit of shock. Because I thought, Oh, my God, that’s him!”
“And did you tell anyone that you’d seen in the newspaper a photograph of the man that you saw outside the window?”
“Unfortunately, I didn’t. I thought, well, at least they know who did it.”
“And, by some chance, do you see the man in the courtroom today?”
“It’s just so vague,” she said. “I can’t recall. It’s been so long.”
Exhausted observers would say, that’s it? For this they brought a witness from the Midwest? All of the argument to let the witness testify to her latter-day epiphany was for that?
The best legal tactic for the defense might have been just to say, “No questions.” But in this case, less was never more. Peter Giannini asked scores of questions, hundreds of questions of a witness whose muddled testimony had just spoken volumes for the defense.
It got down to, “What kind of pets did you have?”
“Kitties.”
“I’m sorry?”
“Kitties. Cats.”
“Cats?”
“A couple cats. Mommy and daughter.”
When all was said and done, there were only two questions that laymen would’ve wanted answered, and not by the witness, but by the lawyers in that courtroom: Why would the prosecution have called this witness? Why would the defense have cross-examined this witness?
The College Hills arson count was far from a prosecutorial slam dunk, dependent as it was on the testimony of this witness and the air force major. The prosecution had never needed the Fire Monster more, to say to the jury:
What does it matter? Any of it? He’s already pled guilty to serial arson!
On Friday of the fourth week, ATF agent Jerry Taylor was called once again to testify that the incendiary device used in so many of the charged and uncharged fires was a “signature device,” and that altogether, it established the M.O. of a serial arsonist.
And the people rested.
The first defense witness called was Jack Vanderlaan, a retired firefighter and arson investigator, formerly of the Los Angeles Fire Department, now a private investigator who’d been hired in 1984 by the insurance carrier for W. R. Grace Company, the parent company of Ole’s.
In 1984 he’d come to the opinion that the fire had originated in the attic space, agreeing with the L.A. Sheriff’s Department. Unlike the fire experts for the prosecution, this investigator said that he was not surprised that no one had smelled a smoldering attic fire.
When Cabral got the witness, he determined at once that Vanderlaan had gotten to Ole’s after the heavy equipment had arrived, and that he’d never entered the building. Nor had he spoken to any of the employees, nor to fire captain William Eisele. He didn’t have a recollection of when firefighters had chopped through the roof, and had never seen building plans. He admitted that his conclusion was based in part on that of Sergeant Jack Palmer.
After hundreds of questions, it boiled down to the next question: “Now, if the employees testified that they’d observed a small fire in the third or fourth aisle from the eastern fire wall, and that they’d watched the fire burn quite rapidly across to the west, and quite rapidly across to the northwest, would that be consistent with an attic fire?”
“It could be, if there was drop-down,” said the witness.
There it was. No matter which side the expert was on, it all came down to one basic question that everyone could understand: Was it more likely that the fire had dropped down, or burned straight up?
The prosecutor gave the witness more questions based upon what Ole’s employees had said, and he got concessions, and the witness admitted that he, like Sergeant Jack Palmer, had not known about the polyfoam.
The most damage to the witness was done, once again, by potato chips: “Now, were you aware that there were a couple of other fires on that night in the vicinity of Ole’s fire?” Cabral asked.
“Other than the fact they were in supermarkets, no.”
“So you weren’t aware that there was a pattern of fires associated with someone using a device to ignite potato chips?”
“I don’t recall anything being said about a device.”
“And having three fires in the same vicinity on the same day in commercial businesses open for business is rare?”
“Yes.”
“In fact, it is extremely rare?”
“Yes.”
“And would you agree that that is a good indicator that you might have an arsonist setting fires?”
“It would certainly be an indicator,” the witness said.
Another defense witness was a former cashier from Ole’s who testified that the ceiling in the housewares department used to leak when it rained, implying that smoldering embers could’ve dropped down from an attic fire and ignited store merchandise. She said that they’d had to replace thirty to fifty ceiling tiles after one downpour.
There were conflicts. Six years earlier she’d told Rich Edwards that the tiles had been replaced prior to the big fire, but now she was saying that she’d been busy on the day that Edwards had interviewed her, and only later had remembered that they had not been replaced.
Another defense witness testified that she’d seen “rowdy” juveniles hanging around Albertson’s Market on the day of the arson attempt. And that although she didn’t recall what they’d said exactly, it could’ve been something like: “Burn, baby, burn!”
At last, a defense witness arrived whom Mike Cabral admitted that he’d feared. The man had a twenty-three-page curriculum vitae. Cabral had never seen one like it. The witness was a mechanical engineer, licensed in eighteen states. He had a background in chemistry and mathematics, and was a member of honor societies both in general engineering and mechanical engineering. He’d designed projects in other states and foreign countries, written peer-review technical papers, and been published twenty-five times or more.
Some of his articles dealt with fire growth and behavior, as well as with smoke and its control. An example of his esoteric knowledge could be gleaned by one of his articles delivered to the Society of the Plastic Institute, at its Thirteenth Combustibility Symposium.
And the witness had once delivered a paper on “Scale Modeling of Multistory Atria Fire Scenarios for Determining the Effectiveness of Mechanical Smoke Control Systems.” It had been given in London and translated into multiple languages.
The witness just about wore out the court reporter, who, like everyone else in the courtroom, understood nothing except that he’d taught for a number of years at U.C.L.A. on “Fire Safe Building Design” and “Smoke Measurement and Control.” He’d been retained several times as an expert involving civil litigation, and had authored various sections for building codes throughout America.
The portly prosecutor had been sweating right through his suit coat after getting the résumé of this witness. And no doubt he’d prayed to Our Lady of Fatima or whoever it is that Portuguese kids pray to when they’re in big trouble. Until he took a gander at the witness and at the jury gawking at the witness.
“Do you know what ZZ Top looks like?” Cabral commented later, when asked his impression of the distinguished engineer.
The guy had a belt-touching gray beard you could hide Ally McBeal in and a gray ponytail just as long; he did look just like one of the Texas blues-rockers whose hits included “Arrested for Driving While Blind” and “Jesus Just Left Chicago.”
After he’d finally gotten through the curriculum vitae, the witness was asked various questions in connection with the Ole’s fire, and whether the fire’s behavior was consistent with a fire that had started in the attic, to which the witness answered in the affirmative. The engineer then said he’d been supplied with drawings representing what the building had looked like before it was Ole’s Home Center, other architectural and construction drawings, and arson reports from various experts, as well as many photographs.
The witness said, “In summary, all of the information that was provided to me would tend to support their original finding.”
Over objections and arguments, Rucker got to ask the witness some questions about lights flickering and breakers having been tripped, and finally, the judge cut off further questions about electrical failure as being beyond the witness’s expertise. But it soon became apparent that almost nothing was beyond this witness’s expertise.
During recess, the judge had a discussion with Juror Number Ten, the crossword puzzler, about a doctor’s appointment. The judge was stunned when the juror said she could not move her appointment to suit the court, and in fact, she’d been instructed “to go through my attorney,” if necessary, to get to the appointment on the only day that the doctor could fit her in.
The judge said in astonishment, “You say you are going through your attorney?”
The American jury system had come to this: A juror was threatening the judge with legal action if she could not be excused for a doctor’s appointment. Yet if asked, every one of the strange fish in that litigation tank would proclaim with indignation: “Of course our jury system works!”
When it got to polyurethane foam, the engineer enlightened the jury on the different types and subcategories of foam, both rigid and flexible, and that he’d done studies on foam in regard to fire inhibitors built into it. But he couldn’t say much about the foam products at Ole’s without more data.
He looked at a photo of polyfoam and said, “I am not certain just looking at this picture which it is. It looks like it could be polystyrene as opposed to polyurethane.”
And of course, he was the only one who had any idea what polystyren
e was. He said that, in order to give an opinion about each type’s ignition characteristics, he’d have to know “the geometry of how it’s stored.” So, Euclid had joined Isaac Newton in the witness box.
Then Rucker asked the witness a long series of questions about smoke detectors, and the witness talked about draft stops and suspended ceilings.
When Rucker asked if there was an attic fire above a suspended ceiling, would people down below smell it, the witness answered, “You would if it were set up as a plenum.”
Nobody knew what a plenum was, and Rucker didn’t ask.
Then the witness became the first to say that draft stops in the attic could actually exacerbate fire by containing it to a smaller area, thus allowing it to heat up and “accumulate excess pyrolysis aids” which could result in backdraft or flashover.
Neither the court reporter nor anyone else knew how the hell to spell “pyrolysis” and Rucker wasn’t about to ask that either.
Then the witness got a hypothetical from Ed Rucker, one that he’d asked others: “Are those facts inconsistent with a fire on the floor, or a fire in the attic?”
The witness said, “Inconsistent with a fire on the floor.”
“Okay, thank you, sir,” said Rucker.
The judge said, “All right, cross-examination.”
“The people would have no questions, Your Honor,” said Mike Cabral, with a little grin.
Ed Rucker later said that his expert witness hadn’t been particularly helpful. It could be that during the testimony the defense lawyer had spotted twelve people doing crossword puzzles.
Peter Giannini called Chief Gray once again, this time as a defense witness. Giannini showed Gray a two-page report concerning brush clearances made four months after the College Hills fire, indicating that the defendant had been doing work relating to the blaze.
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