Despite the hyperbole about thousands of homicides, that argument by Peter Giannini probably represented his finest moment in the case, effectively exposing the quirkiness of the law: One arson murder, no capital crime. Two arson murders, capital crime.
“I think his history speaks for itself,” Giannini said. “He’s extremely sick. He’s not normal. He lacks the kind of control the rest of us have. With John Orr it’s always the same or similar conduct. Repeated conduct. It’s a compulsion. The testimony of Dr. Markman is uncontradicted. The people could have put a psychiatrist up here to say there’s nothing wrong with this guy. They chose not to do that. You have to ask yourself why. I think the reason is because he does suffer from a mental defect. He couldn’t stop himself. He knew he was suspected. He knew he was being tracked.”
So it was Peter Giannini himself who became the one to confront the premise of his earlier argument, that John Orr was too smart to have torched Warner Brothers, Kennington, and San Augustine, knowing that he was probably being tracked. Giannini had at last decided that compulsion trumps intelligence.
“When this trial is over, you’re going to want to put it behind you. If you vote to kill him, it might not be that easy to do. You’ll have to live with it for the rest of your lives. The challenge here is to punish him, to protect all of us, and to hold John Orr responsible for the rest of his life for what he did. And the challenge here, I think, is to do that without losing sight of our own human values, our higher values, and our ability to show mercy.
“It’s never wrong, it’s never weak, it’s never a mistake to let somebody live. However you might feel about John, you’ve got to take pity on his father, his mother, his daughters, his four-year-old grandchild. These are innocent people too. They haven’t done anything. If you kill him, you’re going to destroy them. An eighty-three-year-old man is sitting back there. Let them live out their final years without the horror of John’s execution ruining their lives every day. His grandson needs his grandfather to be alive. How do you say, ‘My grandfather was executed at San Quentin’? If you do this, you’re condemning him too.
“You can’t bring back the people who died in that fire. God didn’t give you that power. God only gave you the power to take life, not to give it back. All you do if you kill John is you create another funeral. Another innocent mother and father suffering the same anguish that we’ve seen. That’s all. Another death, another funeral, another grave.
“There’s been enough death here. There’s been too much death, too much suffering. Don’t make it worse. Don’t make these other people suffer. They didn’t do anything to deserve this. I’m asking you to show mercy to John, to his father, mother, daughters, and grandson. Give him life without the possibility of parole. Thank you.”
When Mike Cabral had his moment, Rich Edwards from his arson task force was there, and Sandra Flannery, as usual, sat in the second chair. When Cabral got up, he said, “Ladies and gentlemen of the jury, I stand here before you with a heavy heart, because as a representative of the people of the state of California, I’m going to ask you to go back and deliberate. And at some point to come out of that room and look at me, Ms. Flannery, Deputy Edwards, Mr. Rucker, Mr. Giannini, and the defendant, John Orr, as well as the thirty-one million people in the state of California, and say that that man there deserves the death penalty for his crimes.
“A man who, twenty-some-odd years ago, undertook an oath to protect the people of the city of Glendale, to be a firefighter, to save lives. And then his reign of terror came down upon the citizens of California. And when you come out that door after deliberating on this, you will have to tell us all that justice was served in this case. The people submit to you that the only morally justified punishment in this case is death.
“It is not an easy decision, but that is, in fact, the case about a man who is trained to protect and investigate and arrest the exact people that he has become. That’s what we trained him to do, but he took that training, that special knowledge that we gave him, and turned it against us. He used it to take the lives of four innocent people, four innocent people who went to work that day or to shop that day.”
Mike Cabral called on a righteous God and biblical passages to counter Peter Giannini’s Cain and Abel allusion, just in case scriptures would carry the day. Then he confronted Giannini’s characterization of the Ole’s crimes.
“Now, Mr. Giannini says, well, Mr. Orr really has not crossed the line into the worst of the worst. He has taken the lives of four innocent citizens. How is that just your ordinary arson murder? The people submit that would be a gross miscarriage of justice and deny the victims their due day in court.
“Now, Mr. Giannini spoke to you, and right near the end of his argument he said the defendant is a man of compassion and empathy, saying look how he’d tried to help the man at Bell’s Cottage. But I ask you to scour the evidence in this case for signs of a conscious empathy on the part of the defendant. Did he show any empathy for the victims of the Ole’s fire? The evidence reflects he took pictures. Then what did he do to add insult upon Mr. Troidl’s two-and-a-half-year-old son? He used his name in his manuscript. This is what the defendant has to say about those four people in the Ole’s fire.”
Cabral then picked up the manuscript and said, “Now, if you look at page ten you’ll see that it ends with, ‘Aaron had already killed five people in one of his fires.’ But what does the rest of that paragraph say?”
He read aloud the paragraph that he’d been holding back for this moment: “‘He rationalized the deaths as he did everything. It wasn’t his fault. People to him just acted stupidly. And their death had nothing to do with the fact that he set the fire. They just reacted too slowly. It was too bad about the baby, but, shit, it wasn’t my fault.’”
Cabral diluted his message by overexplaining what they’d just heard. After that he turned to the manuscript and read more: “‘He loved the inadvertent attention he derived from the newspaper coverage, and hated it when he wasn’t properly recognized. The deaths were blotted out of his mind. It wasn’t his fault. Just stupid people acting as stupid people do.’”
He put down the manuscript, and again characterizing the novel as a memoir, said, “Now, I ask you, ladies and gentlemen of the jury, if you have heard any evidence that Carolyn Krause, Jimmy Cetina, Ada Deal, or Matthew Troidl did anything to be called stupid, because of the way they died? The only thing those individuals did was they had the misfortune of getting in the path of the defendant as he continued his reign of terror throughout the state of California.
“You heard Dr. Markman. He says the defendant is a sick man. Well, you heard the testimony of his former girlfriend concerning her car. Rather interesting, since the defendant supposedly set fires only under compulsion, trying to relieve the tension from his obsessing over something, we’re not certain what.
“The people submit to you that his fire-setting pattern was all about power and control. He talks about that in that book, how he loves the power of watching these people come screaming out of the store. The power as it affects everybody’s lives. And he requires the fire department to come in and bring all their units. He’s in control.
“And then what does he do with that? Well, if he’s got a video camera, he turns it into a video so everybody can see it. He’s got his little secret. His little secret is that he knows he did it. He knows that he did it.
“Dr. Markman goes on to say it would be devastating to his life if the defendant had to actually admit that he had done these things. All he did was plead guilty, and then felt he was being undercut in doing it. Dr. Markman says it would be devastating to his life because it would be an admission that his life was a failure.
“Ladies and gentlemen of the jury, the people submit to you that his life is a failure. That’s what the evidence in this case clearly establishes, that he is a complete failure in life.”
Mike Cabral talked about punishment and retribution, saying that life in a prison cell was much
better than what the defendant had given to his victims. And he asked them to remember the frail and devastated Billy Deal, the first prosecution witness in the case—and it must have seemed long ago to that jury. He talked of how Billy Deal had lost the wife with whom he’d wished to grow old, and his grandson, and that now Billy Deal could not grow old in peace.
“The defendant took that away from Mr. Deal,” Mike Cabral said. “But he asks you to give it to him. To allow him to have that. And the people say, once again, that the only moral, just penalty in this case is death.”
For the remaining several minutes he kept repeating what the victims and their families had lost, but each repetition seemed to diminish the impact. In a sense, Mike Cabral’s remarkable memory, which had allowed him to cover every detail, might have worked against him here.
In the end, he chose not “conscience of the community,” as Sandra Flannery had done, but retribution and revenge: “Certainly the defendant’s family is entitled to your sympathy. There’s absolutely no doubt about that. But the people submit to you that their sympathy is outweighed by the impact that this fire had on all the victims, including Matthew Troidl, Ada Deal, Carolyn Krause, and Jimmy Cetina. Because the defendant’s grandson, unlike Matthew Troidl, will get to see his grandfather again, to tell his grandfather about the happy events in his life, to grow up with his family, spend time with his family. The very things that the defendant has denied his victims.
“And twenty years from now, as Mr. Giannini referenced, John Orr’s grandson will be twenty-four years old, a young man. He may have a family just like Carolyn Krause did. May actually be able to go and see his grandfather and show him the family pictures. But Carolyn’s children won’t have their mother there to show pictures to, and to gush over the children that they have raised. Her children won’t have their mother there to prepare for all the rites of passage that we have in our teenage years and into adulthood.
“The defendant asks you to give him that mercy. The people submit that it is unjust to give him that mercy. The people submit to you that the aggravating factors in this case, the circumstances of the crimes, the impact that it’s had on the victims and the defendant’s secret knowledge, all aggravate this case well beyond any of the mitigating evidence in this case. And we ask you to return with a verdict of death. Thank you.”
The victim’s families, particularly Kim Troidl talking about her son and mother, had shown this jury the face of consummate human agony. A juror’s mixed feelings about capital punishment, retribution, or the value of human life might count for little upon recalling that woman’s desolation. Facts could be forgotten, the law ignored, in a rush to provide her with a drop of solace. One could easily imagine a juror thinking: Put him to death if that’s what it takes. Kill him. Kill him twice. Anything to ease that woman’s everlasting torment.
Ed Rucker knew that, and his argument was unlike any of the others. It was intensely personal, at times was as much about himself as it was about the defendant. He said, “I’m the last lawyer who will speak to you and we’ll be through with the arguments today. This is a rather awesome responsibility, speaking to people who we can’t have a discussion with, about whether we are going to take somebody’s life. I sure don’t feel qualified to do it. I wish we had the ability to bring someone in here to help you. To bring in a minister, priest, rabbi, somebody to speak to you with some wisdom, with more humanity. I don’t feel wise enough to do that. But this is our system, and I am going to do the best I can to help you with this.
“The last few days I haven’t slept much. I was up in the middle of the night walking around the house thinking what I could say. And I think the best thing to say is what I think you might be concerned about, and what you would think about before you’d reach a decision of this magnitude.
“This is a crime from South Pasadena. I lived in South Pasadena for twenty years, raised my family there. My sons went to junior high school and graduated from South Pasadena High School. Every Fourth of July we go back to South Pasadena High School to watch the fireworks.
“I think I know some of the concerns I’d have if I were sitting in your spot. And the first concern is, you don’t want to make a mistake. Nobody wants to make a mistake about something like this. And I know how conscientious you were about your decision. That was very obvious. You took your time. You looked at all the evidence. It was a thoughtful decision on your part, and you were convinced beyond a reasonable doubt that John Orr set that fire at Ole’s.
“I accept that. I accept it. But now is not the time for us not to talk honestly with each other. I’m telling you honestly from the heart, with all due respect, all due respect, that I just happen to disagree with your decision. I accept it, but I happen to disagree.
“The death penalty is an absolute punishment. There’s no coming back from the death penalty. In order to impose an absolute punishment you’ve got to be absolutely certain, and His Honor is going to read you a jury instruction about that. It is appropriate for the jury to consider in mitigation any lingering doubt it may have concerning the defendant’s guilt. Lingering doubt or residual doubt is defined as that state of mind between a reasonable doubt and beyond all possible doubt. So if you have any doubt at all that John Orr didn’t set the Ole’s fire, you can use that as evidence in mitigation. Because this is something that has happened under our system. Men have been convicted, men have been executed …”
Cabral stopped that with an objection, and the judge said, “Yes, that is objectionable. Disregard the last comments.”
Rucker continued, “Well, two hundred years ago, Thomas Jefferson said that until the infallibility of man’s judgment is proven, I will not favor the death penalty. And that’s common sense. So how certain are you? How certain can you be? Remember, this is a case of circumstantial evidence. No witness came in here and said, I saw John Orr set that fire. No police officer came in here and said, I arrested John Orr and he told me he committed that arson. You didn’t hear any witness say they saw John Orr driving away from the fire. No device was found at that fire.”
With this approach Rucker was taking a road less traveled. Lawyers seldom refute the jury’s findings in the penalty phase of a capital murder trial. It’s too easy to anger a jury by implying that they’ve been wrong, but that is what he did for several minutes.
He said that because so much time had passed since 1984, perhaps all witnesses had not been found, and he began to directly argue again, saying that there were witnesses who’d seen smoke coming from the roof. He was still arguing for his attic fire, a very risky tactic at this point, after the jury had already decided that issue. But he persisted.
Rucker told them that during Cabral’s final argument, he’d suddenly realized for the first time that the fire could have gone up over the south exit, through the acoustical tile and back through the attic area, accounting for all fire burns in that area. Rucker couldn’t stop. He was still arguing his case. Possibly, Ed Rucker could get away with it because he was so desperate to save another man’s life. He was imploring them with passion and humility to have mercy on his client. This giant of a lawyer was figuratively on his knees.
“It was heart wrenching,” he said, “to listen to those parents talk of the loss of a child, loss of a mother, loss of a loved one. Unfortunately … unfortunately, we cannot change that. We just can’t!
“Now, you could not be lenient to John Orr if you wanted to. No words can describe how horrific a punishment life without the possibility of parole is. One cannot describe the man-made hell of steel and cement that you are going to drop that man into. Everything that we use to define life and living is taken away. And they suggest to you that he would sit there and somehow enjoy thinking about fires? He is going to sit there and think what he has done to his life, and what he has done to other people, and what he has done to his family, and have no respite from that.
“You are never required to give the death penalty. You have to choose to give the death penalty.
I would suggest to you that John Orr is not so reprehensible. He has not led such a despicable life. He is not so lacking in redeeming human qualities that he falls among the worst of the worst. We can protect ourselves from John Orr. We can lock him up forever. We do not need to kill him. And the things that he has done in his life must count for something. They must. They must count to set him aside from the worst of the worst.”
After describing how John Orr’s family loved him, and his service in the air force, and lifesaving as a firefighter, he again tried to separate his client from the worst of the worst. He said, “This was not an act based on evil. This was an act based on a mental defect. Anybody who sets fires time after time after time—and doesn’t do other antisocial things such as robbing banks or raping women—what does that tell you? He’s not normal. He’s got a mental defect. That is something under the law that you can consider.
“I don’t think, in the rush of the moment, in the heat of anger, in the very understandable sympathy for the victims of these fires, that we always think about the consequences of a decision to take somebody’s life. I personally think we all pay a price if we do that. I don’t understand the twisted logic that says somehow we’ll show respect for human life by taking human life. I think, as a society, we erode our respect for life when we do that. I think that’s the signal we send to our children. And I think all of us in this courtroom will have to lose a little bit of our humanity if we vote to take a life. I think you are going to have to deaden a little part of you to do that.
“You know, one of the ghoulish aspects of this process is that as his lawyer, I get invited to the execution. So I will be living with this for a while. We pay a price. And you will pay a price if you vote for this.
Fire Lover Page 37
