This was deceivingly dangerous testimony for the defense because the jury would eventually be hearing that the defendant had pled guilty to an arson at the same Builder's Emporium store, and that an identical incendiary device had been used.
The next witness was called to provide more information about diversionary fires on the night of the Ole's disaster. Scott McClure, a Pasadena fire investigator, said that a fire alarm came in at 6:45 p. M. on the night in question for a fire that had occurred at Albertson's Market. McClure had determined that the fire was incendiary in nature, and that it had broken out in the potato-chip racks. The witness said he'd called dispatch, asking for John Orr's location.
He said, "With the experience that he had, I always relied on his word as being the Gospel. I admired his work. So anything he said, I felt comfortable with."
This was another potentially dangerous witness for the defense, so when it was Rucker's turn, he began by establishing a time line that he hoped would prove that John Orr could hardly have set three fires in such a short period of time. He asked McClure to estimate how long John Orr had been at Albertson's and the witness said about fifteen or twenty minutes.
There was a great deal of talk about incendiary devices, and which was more common than another, but one could not help but take away from the day's proceedings that having three fires in retail businesses so close to one another in time and distance, whether incendiary or accidental, had never happened before in the experience of any of the local fire investigators.
On the last day of the week, the first witness called, whom the defense had no wish to cross-examine, was Karen Berry, nee Karen Krause, the sister-in-law of Ole's victim Carolyn Krause. She told of the night of the fire, and that she'd been a community-service officer for the Glendale Police Department.
"What if anything did the defendant later say to you concerning the fire?" Cabral asked.
The witness answered, "In discussing the investigation he was somewhat disappointed and upset because it was not being investigated as an arson."
"And did he say anything else concerning that?"
"Yes, he said there had been a number of other such fires in home-improvement companies, specifically the Builder's Emporium in North Hollywood, where a fire had been started in a polypropylene mattress which was subsequently extinguished by the sprinklers. He said there was a possibility that the Ole's fire may have been set the same way."
"Did the defendant say anything else to you concerning the nature of the cause of that fire?" the prosecutor asked.
"Yes. In the previous fire that he mentioned in North Hollywood, he said that a time-delayed device had been set in the polypropylene mattress."
"And did he tell you anything concerning the autopsies of the individuals who died in the Ole's Home Center fire?"
"Yes. He expressed disappointment because there were no investigators present at the autopsy for any of the victims. He felt the materials that may have been given off by such things, such as polypropylene mattresses or other flammable items, may have left particles of some material in the victim's lungs or in their tracheas. Or there may have been some gases present that might have otherwise been absorbed in the body that could've been discovered during the autopsy."
There were many good reasons for Rucker not wanting to cross-examine this witness, and it was not just because of the defendant's distress that the Ole's fire had been called an accident. It was the dreaded name of Builder's Emporium.
For the next several hours the jury was going to hear from the first of the experts who were going to offer opinions as to whether the Ole's fire was or was not correctly called an accidental fire. The first of these was Wayne Martin, a retired fire-protection engineer and civil engineer, who had served for twenty-two years with the Los Angeles Fire Department.
The witness testified that he'd been contacted in 1993 by the D. A.'s Arson Task Force to review all the reports available from the Ole's fire. He quickly got to the point by saying that he did not agree with Sergeant Jack Palmer that the disaster had probably been caused by an electrical fire in the attic.
He said that if it had been an attic fire reaching temperatures of one thousand degrees or more, he would expect the flashover to take place in the attic first. He explained that the venting of the roof by firefighters is done to allow the smoke and gases to escape, so that the firemen can see open flame and sometimes the fire's source, in order to more effectively extinguish it.
The defense quickly launched an attack on Martin's credentials. The witness said that he'd never served with the Arson Investigative Section, and had never testified as an arson expert in a court of law. He made it clear that he'd only been called upon to give an opinion as to whether or not the Ole's fire was consistent with an attic fire.
Ed Rucker did a thorough job with questions about what the witness did not know about the Ole's fires, about neighbors of Ole's who did smell or see some smoke that must have vented from the roof. The defense attorney demonstrated a thorough understanding of what materials were used in the roof composition, and he asked hypothetical questions about ceiling tiles and wind directions, designed to cast doubt on the witness's opinion about the fire's point of origin. Rucker tried to get an admission that if some ceiling tiles were missing, an ember could have dropped through, igniting a second fire on the retail floor of the building.
The entire testimony of the witness could be summed up in one question and one answer, both of which came after hours of repetitive and technical questions and answers. It boiled down to this: Did the fire start up and drop down? Or down and climb up? Which is more likely?
When court resumed on Monday of the second week, John Orr's friend and colleague Jim Allen, formerly of the state Fire Marshal's Office, was called. One of the first answers he gave that was helpful to John Orr was that he couldn't say if the fire had started in the attic or on the floor of the building.
But what was not helpful to the defense, and what any layperson could readily understand, was that this man whom Allen called a social friend as well as a colleague had never mentioned to him that there were two potato-chip fires that evening. And further, that John Orr had been at one of those and was the official investigator at the other. That was an extraordinary thing for his friend to have kept from Allen when they were at the Ole's investigation the next morning.
Cabral asked, "Would knowledge of those two fires have had some impact on your investigation?"
Allen answered, "Yes. I would've spent more time with the sheriff's lieutenant who ordered us out, by trying to convince him that there had been other fires, therefore we really needed to thoroughly investigate this one."
Mike Cabral called another L. A. Fire Department employee, James Daneker, who had earned a doctorate in pharmacy prior to joining the fire service. Captain Daneker had more than twenty-five years service with the LAFD, and was to testify only to fire dynamics. Daneker's job had been to use the radio recordings of the fire department to try to establish at what point during the Ole's fire some of the things described by witnesses had occurred. He said that if there had been a genuine attic fire, flames would've come out the roof before coming out the doors, because fire obeys the laws of physics and chemistry.
As before, when it was Ed Rucker's turn, he went directly at the qualifications of the witness, pointing out that Captain Daneker's educational background was in pharmacy, not fire dynamics. Daneker countered that he was currently in command of Fire Station Number 39 in Van Nuys, and that he'd qualified in court as an expert on fire cause and origin on many occasions. Like other witnesses, the fire captain stressed that he was not there to say that the Ole's fire was an arson, or anything else about the cause, but merely to say that in his opinion the origin had not been in the attic.
Again, Ed Rucker conducted a lengthy cross-examination about the witness's knowledge of the building materials that went into the construction of Ole's roof and ceiling, but the witness kept giving direct, simple answers to very
complex technical questions. And no matter how long the questioning went on, or how the questions were framed, the witness kept returning to the laws of physics. He might as well have had Isaac Newton sitting on his lap.
After hours of questioning, Rucker pointed out that Sergeant Jack Palmer of the L. A. Sheriff's Department, and many other arson investigators at the scene, had called the fire an accident, and asked if those reports would have at least been useful to the witness in forming his own opinion.
But the fire captain replied, "Not necessarily, because those were all investigations after the fact. And what's important to me in deciding whether or not Ole's was an attic fire was the dynamics while the fire was still going on."
Like the trained pharmacist he was, the fire captain relied on the properties of matter, and that was that. His time on the stand could have ended in twenty minutes, and the jury could have accepted it or not. But it ground on from both lawyers until the witness had to repeat his opinion in every possible way without exiting the English language.
The dogged prosecutor finally arrived back full circle, and mercifully concluded with, "And fire is always going to be trying to rise?"
The witness said, "Yes. That's one of the rules of physics, the transfer of heat."
The prosecution's next witness was Frank Randall Holmes, an electrical contractor and electrician with about thirty-seven years of experience. It was his and his father's company that had done the electrical work for Ole's a few years before the night of fire.
When Ed Rucker took over he established that most of the physical overseeing of the actual work had been done not by the witness but by his foreman. And he also elicited a statement by the witness that the business had gone bankrupt. The reason became clear when Rucker asked the witness if he'd settled the huge lawsuit with the plaintiffs, hinting at culpability.
The witness was asked about track lighting, and the lighting fixtures in the display canopy, and he admitted that there were some breakers in the store that were not holding their capacity and had tripped from time to time, requiring service calls. His people had spoken to the store employees about taking more care with their light displays, so that too many fixtures were not put up.
On redirect, Cabral asked a question that got a nod from most nonlawyers in the courtroom: "Mr. Holmes, if you know, did everyone who had anything to do with any of the remodeling or construction at this Ole's Home Center get sued?"
The witness replied, "I believe everyone did, yes."
"No matter what they did at the site?"
"I believe so."
Cabral asked the witness to repeat that the main service for Ole's had been a six-teen-hundred-amp service, twice what the store had been using, and had been extremely adequate.
All of the television media, composed of people with the attention span of sand fleas, had fled halfway through the testimony. In fact, most of the gallery, except for the die-hard rail birds, had also hauled ass. Thus far, the trial was so technical that even the Fire Monster might have keeled over from fatigue.
Chapter 17
REDACTIONS
The time had come to expect another law-enforcement witness to fall on his sword. Jack L. Palmer was called to the stand.
The witness testified that he'd been a sergeant on the Los Angeles County Sheriff's Department assigned to the Arson/Explosives Detail, with twenty-five years of service at the time of the Ole's investigation, and he'd retired three years later. John Orr said that Jack Palmer looked like every other retiree from the sheriff's department that he'd ever met, a beefy, mustachioed old cop, but this one had little of the customary swagger, not on this day.
Jack Palmer listed his qualifications, among them that he'd investigated five thousand fires in his career, and then Cabral took him directly to October 11 at 10:30 in the morning.
Cabral placed the diagram of Ole's on the board for the witness to study, and asked him to make marks with a laser pen.
Palmer testified that in 1984 he'd drawn his conclusions about how the fire had vented by looking at heat patterns on the exterior walls where the ceiling had caved in. He talked about the steel girders having twisted due to that intense heat, and that he'd thought the hot spot was in the south end of the structure.
After considerable questioning, Cabral asked, "Did you ever determine from talking with employees where the polyfoam was stored?"
The witness answered, "No one ever told me there was any polyfoam anywhere."
"And would that have been significant?" Cabral asked.
"Yes," the witness answered, "it certainly would have. Because polyfoam, once it gets in an open flame, goes like wildfire."
Cabral asked, "Now, Sergeant Palmer, how long did you spend at the location before you made your determination?"
"My first determination, I was probably there about an hour, hour and a half."
"And what determination did you reach?"
"That I was unable to eliminate electrical shorting in the attic area."
"And that was because the attic area was gone?"
"Yes. What was very very very hard in reading a fire like this is because you have so much of a fuel load in there. So we had secondary fires. When you get overhead burning, materials fall down and start another fire. So you have numerous hot spots depending upon what your fuel load is."
The witness testified that he'd interviewed the first-in fire captain, William Eisele, and "a couple of employees," including James Obdam, who had barely gotten out alive.
And then the prosecutor mentioned the names of other employees whom Jack Palmer had not interviewed, and Cabral repeated what Anthony Colantuano had seen, the fire boiling from the racks toward the center of the store. And how the fire had exploded out the door behind the fleeing employee.
Jack Palmer said, "I never heard any statements like that."
"Okay, would it be significant to your conclusions?" Cabral asked.
"Sure it would," the witness said. "I had a high fire. We dug that area out completely and we could not find evidence of a low fire in there."
"By low fire, what do you mean?" Cabral asked. "If the fire started two to three feet off the floor, you wouldn't necessarily have been looking for that?"
"No," Palmer answered. "Unless I had a pattern of fire-sets like that."
Then Cabral took the tack that everyone was waiting for. "You were aware on that night that there were two other fires in the area, and they were both arson fires. Is that correct?"
"Yes, they advised me of those," the witness admitted. "Those fires they told me were in stores, grocery stores. And were set in potato-chip racks, open flame to potato-chip bags. I mean, I don't ... I considered the information, but as an investigator, I know what evidence I need. I know when I testify I have to be sure in my mind that I have eliminated all accidental sources."
The Bulldog kept chewing away at the witness's pride, little bites at a time: "Now, if there had been additional information that in fact there was a history of fires involving potato-chip racks, and polyfoam, and a particular device, would that have affected your opinion and your evaluation of this fire scene?"
"Yes, had I known there was polyfoam in that area," the witness said, partially agreeing.
"And during the course of your time there, were there a lot of investigators there?"
"Yes, there were."
"If any of those investigators were familiar with this pattern that was occurring, would you have expected them to talk to you about it?"
"I certainly would."
Cabral was speaking of the defendant when he asked, "And did anyone talk to you about any pattern of fires or anything like that concerning the two other fires?"
"They did not."
Again referring to the defendant, the prosecutor asked, "And did anyone tell you that they had any information that led them to believe that this was an arson fire started in the polyfoam, using a specific device?"
"No, sir, they didn't."
"And would you
expect an arson investigator to explain that information to you?"
"Yes, I would."
"I have no further questions," Cabral said.
Ed Rucker asked questions to point out that Palmer had had five other members of the LASD arson unit with him at Ole's that morning, as well as numerous other arson investigators. And that nobody had expressed vocal disagreement with Palmer.
Rucker made the witness repeat that what he'd seen at the site led him to believe that it was a high fire that had burned down and started a secondary fire on the floor, and that Jim Obdam had told Palmer that a couple of days before the fire the lights had gone off.
Rucker asked, "And has it been your experience that electrical shorts can result in ignition of material?"
"It certainly can," the witness said.
Rucker asked, "Did the fact that there were other fuel loads on the floor where the secondary fire fell down . . . that's not going to change what you saw as those fire indicators, is it? Those burn patterns up above the ceiling level?"
"If I had a set fire with a petroleum product, it would cause a rapid fire. There would've been the same result."
"And you can't draw a distinction on what you saw between the two interpretations of what happened? Both seem reasonable?"
"Both are reasonable."
"Has anything you've learned since then brought you to change your conclusion?"
"Not anything that I've learned since then, no." Then he hedged, "I understand, you know, the facts of the case. But I ... if you want to give me a hypothetical, I would say, if I knew a fire was set in that foam, then that is my rapid fire. That is my source. But when I read the fire fourteen years ago, I did not eliminate the electrical."
When Cabral got his witness on redirect, he had to take him on. He said, "Were you aware that Investigator Jim Allen felt that he was kept out of the scene for some period of time by the lieutenant from the homicide division?"
"A couple of the other team members had said, you know, that he was complaining about that," the witness replied.
Fire Lover (2002) Page 27
