“In all the years I have practiced law I have never known a juror who regretted passing up the opportunity to give somebody the death penalty. One of the most uplifting moments of my life is when I was in college at Berkeley, I had the honor of being on a committee to welcome Dr. Martin Luther King. I got to shake his hand. And I remember when he was shot down by an assassin, his wife, Coretta King, said she would not join the voices of cynical people who felt that the killer of her husband deserved the death penalty. She said that’s not what Martin would have wanted. It’s not what she wanted.
“Now, it’s hard to speak to you about mercy, but I do know that there is some benefit to all of us if we stretch out a hand in an act of mercy. And mercy is not given to somebody who’s earned it. It’s not given to somebody who you have sympathy for. An act of mercy is given for your benefit. Your benefit. It’s what makes us human. It raises us above whoever we sit in judgment on.
“If one of you, one, decides that John Orr should not receive the death penalty, he doesn’t. So what that means is, each of you has the power to give life or take life. Each of you. It is very tempting sometimes, particularly for a man, to think that taking life is the brave thing to do. The strong thing to do. I don’t agree with that. I don’t know how brave it is to say, I want somebody else to take this man down a hall and strap him in a chair. You don’t give medals for those who serve on firing squads.
“If you believe the death penalty is not appropriate, I’m begging you to be strong in your resolve. This is not a time for weakness. Each of you have equal dignity. If you don’t vote your heart, and if you don’t vote your conscience, that means somebody else gets two votes. And that means sometime in the future you’re going to look back and say you didn’t fulfill your oath and your responsibility.
“I’m asking you to spare this man’s life. I am not ashamed of it. I am going to beg you, for my sake, for his sake, for his family’s sake, for all our sake. I am going to ask you to be strong. I am going to ask you to bring back a verdict of life without the possibility of parole.”
After the judge read his lengthy jury instructions an adjournment was taken until the next morning. Observers could debate the different approaches taken by the four lawyers in the courtroom that day, but if passion was an important ingredient in such circumstances, it was clear which side got the edge. Rucker looked like a man who would’ve closed his argument with a Glock .45 and a chain saw, if it would’ve saved his client’s life.
Peter Giannini reported that Ed Rucker had been brokenhearted when the guilty verdict for the Ole’s fire had come in, and he certainly wouldn’t be getting much sleep as he awaited this verdict. One way or the other, Ed Rucker said he was through with death-penalty cases.
On Tuesday, July 7, Juror Number Eight was unable to be in court due to a personal emergency and was excused. Alternate Number Four was seated, and deliberations were begun.
Late in the morning, on Wednesday, July 8, the jury handed a note to the bailiff that read: “Is there a legal definition for the term force or violence? And if there is, is the commission of an arson considered the use or threat of use, of force or violence as used in CALJIC 8.85, subsection b?”
That was enough to get the lawyers and the judge into a legal dispute for an hour or so, and in the afternoon the jury was brought into the courtroom.
“This is our answer,” the judge said. “The terms force or violence have their ordinary meaning. An arson of property is not considered to be criminal activity involving the use of force or violence unless there is the threat of harm or injury to humans, or a danger to human life.”
On Thursday, July 9, with all lawyers present, the judge said, “We’ve received a note from the jury approximately forty minutes ago. That note reads, ‘The jury is deadlocked. We do not think further deliberations would be helpful.’”
The jury was brought out and seated, and the judge made the inquiry: “Juror Number Five, do you think any additional read-back of testimony or any further instruction on the law might assist this jury in breaking the deadlock?”
“No, I do not,” said Juror Number Five, the foreperson.
The judge then asked the same question of every other juror and received the same answer from each of them.
The judge said to the foreperson: “Can you tell us in what direction the last vote was, and what the numbers were?”
“It was in the direction of the death penalty. Eight to four.”
“All right,” said Judge Perry. “I have declared a mistrial. We are going to release you. I want to tell you that it has been a long road that we started on April thirtieth. I want to express my sincere appreciation for the devotion you have shown in judging this case.”
Judge Perry set the matter for sentencing and asked for a declaration by the district attorney if the prosecution intended to seek a retrial on the penalty phase. The judge lifted all gag orders, but advised Cabral to be careful in talking to the press if he was considering a retrial.
And it was over, finally over, until sentencing on September 10 at 8:30 A.M.
Mike Cabral had a barbecue at his home, and all of his DA’s task-force members were invited. Everyone but Walt Scheuerell, who was living in retirement near Yosemite, made the long drive east to Moreno Valley. And everyone agreed that they had experienced their “career case.”
All in all, it was a lighthearted celebration with lots of kudos to Mike Cabral for being the first prosecutor ever to rehabilitate a very old case of “accidental fire,” at the same time successfully prosecuting a defendant for a capital crime. It would certainly be his career case.
One of the people at that barbecue was former Burbank arson investigator Steve Patterson, who brought a trophy to Cabral on behalf of the task force. And they presented it with beers and cheers and as much seriousness as they could muster. Steve Patterson seemed to be enjoying his retirement, and almost, but not quite, made it through the afternoon without mentioning Mary Susan Duggan, saying what a pity it was that he couldn’t have persuaded others to heed his theory, to listen to his evidence, to act on his hunch.
And everybody within earshot would suddenly get hungry and sidle away for some more barbecue.
The sentencing of John Orr was supremely anticlimactic. He came into Judge Perry’s courtroom wearing jail blues, looking a decade older than he’d looked when he’d been taken into the county jail system nearly four years earlier. Peter Giannini stood with him and was not even acknowledged by the angry defendant.
Judge Perry sentenced John Leonard Orr to four concurrent terms of life imprisonment without the possibility of parole, plus twenty-one years on the additional fires. All in all, it was not an unhappy day for the defendant, who would now get out of county lockup and into a federal penitentiary where he could start to live like a human being.
Of course, the District Attorney’s Office informed the court that they would not be retrying the penalty phase, and it was truly finished, except for the inevitable appeal.
Eighteen months later, on March 15, 2000, the Court of Appeal of the State of California, Second Appellate District, decided an appeal from a judgment of the Superior Court of Los Angeles County in the case of the People v. John Leonard Orr. The judgment of Judge Robert J. Perry’s court was affirmed with a slight modification of the consecutive sentences in the College Hills fire. The appellate court agreed that the defendant’s aim had been to set a brush fire, and the burning of homes was incidental to his objective, so the consecutive terms imposed were deemed in error, and the sentence was modified. That meant that after serving his federal term and his state term for all of his natural life, he would only have to serve another twelve years instead of twenty-one.
23
THE QUEST
After his appeal was rejected, life for John Orr was still worth living. His was not the kind of personality that turns toward a wall and shrivels. Indeed, his life at “Club Fed,” the U.S. Penitentiary at Lompoc, was surprisingly tolerable. He lived in
a room, not a cage. He called it, wryly, his “mini-apartment.” He was in the Honor Unit, so the door to his room was left open unless there was a general lockdown for some reason, and he could come and go to the common bathroom down the corridor. And there was another common room with a TV where programs were selected by vote of the inmates in the Honor Unit. He wished for a good steak once in a while, but reported that he was in the best shape of his life. He looked younger and certainly healthier than he’d looked during his murder trial.
John Orr became a prison librarian and taught creative writing to a small group of inmates. He’d managed to write a voluminous autobiography called Baptismal Fire, describing how he’d been betrayed by a system of sinister investigators, incompetent lawyers, dishonest prosecutors, and biased judges, who’d demanded that he produce impossible “lunch with the pope” alibis, and convicted him when he couldn’t.
He proclaimed his innocence to anyone who would listen and kept a fellow inmate, a “jailhouse lawyer,” busy drafting an appeal of his government conviction under the theory that if he could have the Fresno verdict reversed all else would fall, because all else had been based upon that first conviction.
That was the theory, and he thought he could prevail by citing the Timothy McVeigh Oklahoma bombing case in a claim that government evidence had been withheld at his trial. The prisoner had twenty-seven phone numbers on his list of telephone contacts, and was allowed one ten-minute call per day.
Visitors were surprised by the facility in that beautiful part of the Central Coast, Lompoc being the flower-seed capital of America. Upon driving up to the prison, one would encounter less dangerous inmates jogging beside the entry road, and the climate was so mild that those prisoners could be outdoors just about all year. Even in the more secure part of the penitentiary, where John Orr lived, the guards wore blazers, white shirts, and ties, with nobody looking like the bulls from old prison movies. The visiting room was large and airy, and had food and drink machines and lots of kids running around on visiting days.
The real problem for him was that federal prison guidelines might mean that he could be paroled out of the federal system and into the state system as of 2002. He hoped that even if his appeal failed, he could find a way to stay at Lompoc for at least twenty years. Federal time was better than state time anytime. State prison was what Ed Rucker and Peter Giannini had described to the jury as a living hell.
John Orr had managed to secure a literary agent, and both of his books, Points of Origin and Baptismal Fire, were to be published on-line as E-books. He was excited about that, even though no profits from book sales could go to him. Court TV interviewed him and he thought they’d done a fair job, better than other interviews he’d given. But after seeing the final product, he hated it.
And something else had happened. John Herzfeld, the Hollywood producer/director/writer, whom the Pillow Pyro Task Force had tried to enlist in getting a copy of John Orr’s manuscript, had gotten his movie project off the ground. He was finally shooting his version of Points of Origin, having purchased the movie rights years earlier. It would be shown on Home Box Office and starred Ray Liotta as John Orr. Though the prisoner feared the cinematic depiction, clearly, he was thrilled by all the attention he was getting.
“Hoo-ray for Hollywood!”
So said Steve Patterson, after he’d been referred to John Herzfeld by Mike Cabral. Herzfeld and an associate came to his home and invited Patterson to a lunch at the L.A. Police Academy with actor Ray Liotta to chat about the secret life of John Orr. Steve Patterson was ebullient because John Herzfeld was the first person in years to want to hear about Mary Duggan, and Patterson found it all coming back, pouring back, washing over him. He persuaded Herzfeld to accompany him to the place where Mary Duggan’s body had been found, and Herzfeld came to share Patterson’s suspicion that John Orr had murdered her. He promised Patterson that he would try to exert pressure on Mike Cabral and the District Attorney’s Office.
Two days later, Steve Patterson got a call from Cabral, who said, “Thanks a lot, Mr. Bigmouth! I get you a nice afternoon out with movie people and this is the thanks I get?”
“I hope I didn’t get you in trouble,” Steve Patterson told him.
Cabral said, “No, it’s okay.” Then he added, “To tell you the truth, I’d forgotten about Mary Duggan.”
After the promised phone call from Herzfeld, Mike Cabral wrote a letter to the Burbank Police Department asking what had became of the vaginal swabs from the Mary Susan Duggan murder investigation of 1986. He informed the police that the District Attorney’s Office was interested in pursuing a DNA test to determine if the genetic signature of the killer could be obtained. Cabral was told that a DNA test could be ordered, but would take six months due to the workload at the sheriff’s DNA lab.
Mike Cabral went back to his busy life as the DA’s arson prosecutor, and pretty much forgot about it again, especially after others in his office said, “Orr’s doing life. What more do you want?”
Cabral could have told them what he’d said to John Orr’s jury: that murder victims must not be denied their day in court. Steve Patterson said that’s what he wanted for Mary Duggan, who had not lost her entitlement to justice. And that it was not about John Orr, it was about Mary Duggan.
After the six months had passed, Mike Cabral was prodded until he checked on his DNA request and discovered that nothing had been done. The genetic material had been misplaced, so after several frustrating calls to the police detectives and the DNA lab, the Bulldog finally got aroused.
In July 2001, he called Detective Carl Costanzo, Steve Patterson’s former partner on the Burbank arson unit, and told him that the DA wanted action. Then Cabral asked for the homicide book on Mary Susan Duggan, but was told by the detective, “I’ll have to check with my lieutenant on that.”
The Burbank police seemed very anxious about being embarrassed if it turned out that there was a DNA match, after all the ridicule that Steve Patterson had endured, after so much time had passed when nothing had been done.
Cabral replied, “No, you don’t understand. Tell your lieutenant that the District Attorney’s Office is picking up that homicide file today. And I’m taking it home over the weekend to read it.”
Only a few people learned about a peculiar thing that had occurred when Steve Patterson had first talked to John Herzfeld about Mary Duggan. Patterson thought that he was finished with his obsessive quest. True, he still kept a copy of the crime file in a bedroom drawer, and he couldn’t help thinking of Mary Duggan occasionally. His daughter Jill may have brought it back when she’d experienced life’s benchmarks. There was that, but for the sake of his emotional health, he believed that he’d put Mary Duggan away in a safe place and had moved on with his life.
But while he was sitting in his home telling Herzfeld about the murdered girl, a peculiar thing happened: his throat swelled, his voice broke, his eyes filled with burning tears, and he was astonished! Where had that come from?
It became apparent that Mary Susan Duggan, a young woman who’d been murdered and abandoned—and forgotten by the law—had not lost her champion after all.
A group from the California Conference of Arson Investigators had an idea that summer. They thought that by this time, John Orr must have mellowed, and might be willing to do something for his former profession in order to set right all of the wrongs. They contacted him at Lompoc and requested permission to visit and shoot a video designed to explore the mind of the serial arsonist.
Perhaps none of them were aware of the seminal work done on psychopathy by Hervey Cleckley, who wrote The Mask of Sanity, a book with a catchy but misleading title that could have been called, more accurately, The Mask of Normalcy. Cleckley and others have pointed out that the psychopathic serial offender wears a mask, and that no one, not even the psychopath himself, peeks behind it except on the rarest of occasions.
John Orr’s response to his former colleagues was terse: “If you want to study a serial ar
sonist, why have you contacted me?”
As summer ended, Mike Cabral became one in a long list of professional prosecutors to fall victim to political maneuverings. The newly elected district attorney decided that prosecutors who had been in the same job for a long time should be transferred. Letters protesting Cabral’s ouster were sent by ATF, LAFD, LASD, and many fire chiefs in the Los Angeles area, all to no avail.
His national reputation, for rewriting the ATF course Arson for Prosecutors and for his arson lecture series given to psychologists and psychiatrists, all was deemed extracurricular. Cabral was sent to the Pomona office to handle ordinary cases, but was reminded that Pomona was much closer to the new home he had bought because their fourth child needed special education that only the Temecula school district offered. The girl had been born with a broken chromosome, and had vision, hearing, and learning problems.
However, Mike Cabral was a renowned arson prosecutor. Arson prosecution had always been his passion, so his voice lacked conviction when he told everyone that the arbitrary transfer closer to home was “probably for the best.”
On September 11, 2001, John Orr’s circumscribed world was immediately touched by the shattering events. Fellow inmate Mohammad Salameh, convicted of the World Trade Center bombing of 1993, was whisked from the unit never to return. He would eventually be transferred to a federal facility where he and the other WTC bombers could be more easily protected from fellow inmates.
A court order was signed by a Los Angeles Superior Court judge in October 2001 to extract blood and saliva from John Leonard Orr at the U.S. Penitentiary in Lompoc for a DNA comparison, reason unspecified. At first, John Orr was worried.
“What’re they trying to pin on me?” he said, half joking. “The Chicago Fire? Or maybe … a murder?”
Fire Lover Page 38
