It was very difficult to discredit all the testimony without drawing too much attention to the arsons with which he'd not been charged, but at least Giannini managed to get across that many of the people who'd identified John Orr in the six-pak photo lineups had seen his face in the newspaper or on television before having seen the lineup. The strong indication was that they'd been influenced by pictures of a man whom the police had already arrested.
There was damaging testimony to the defense from Rich Edwards, who was recalled to testify about the Kennington fire, and about photos that John Orr had shot of the house before the fire, and photos of the structure while the house was burning. Rich Edwards testified that the photos had been mounted on a board in John Orr's office, possibly a before-and-after lesson as to what can happen if you don't pay attention to brush-abatement warnings.
Mike Cabral came back to ask questions about the San Augustine fire from Battalion Chief Gary Seidel of the L. A. Fire Department, who recalled having seen John Orr driving on the 210 Freeway shortly before the chief spotted a column of smoke from a brush fire.
Giannini did his best to minimize the importance of the sighting, but still, the jury had been made aware that once again, where there was fire, there was the defendant, alone.
Some of the most interesting conversation which the jury never heard took place at the bench when the lawyers and the judge squabbled over which passages from John Orr's novel should be redacted. With Mike Cabral, Sandra Flannery, Ed Rucker, and Peter Giannini standing there, each with a manuscript, dialogue took place that might have perked up the ;ury who'd suffered through such technical and legalistic argument up to then.
It was quite a scene, really: The wiry judge peering out through those metal-rimmed spectacles. Peter Giannini looking Armani prosperous, with the mane of dark hair and basso profundo dominating. Ed Rucker looming, like a graying NBA player debating with normal-sized referees.
Sandra Flannery prim, slim, speaking in low-key whispers. And of course, hairless Mike Cabral busting the seams of his size 50, with a body no miracle fabric could contain, except maybe the Shroud of Turin. And all of them unsmiling and serious and lawyerly.
At one point, Judge Perry said, "Now, the next section is at page sixteen. What will be excised is as follows: 'Judging by the size of your dick right now, I'd say it was a pretty good fire.' I don't think that adds anything to the case. So that will come out."
Nobody argued to save the dick.
He later said, "At page twenty-seven, four lines up from the bottom: 'He watched her large breasts hanging loose under her T-shirt.' That is gratuitous, unnecessary, and in my view should be excised or redacted."
And later, " 'Nice shirt, he said as she passed. Fuck you! She spat at him, as he walked to a nearby car.' That will be stricken."
And still later, "I think it's appropriate to excise these two sentences. 'Her loose T-shirt fell away from her waist as she bent, showing one of her firm breasts from below. His body tingled as he wandered to the rear of the store.' My view is that it would be viewed as prejudicial. It would invite the jury to consider that the author had some type of sexual fixation."
And then there was debate about excising all references to Trish's breasts, for fear of the jury thinking that the author liked hefty hooters.
Peter Giannini said, "There's a line in there after 'nice tits.' "
The judge said, "Everything comes out starting with 'nice tits' to 'she never wears a bra either.' Those seven lines are going to be excised. I am going to allow some limited reference to masturbation while the fire is going, but it is past tense, unrelated to any fire I believe that is charged in the case. And I'm going to sustain the objection on page sixty-four to the following: 'He remembered his binoculars and focused on the teenage girl as she fled. Aaron fondled his cock then. And he found himself unzipping his pants now as he relived the excitement he felt.' I'll hear your argument, but I don't think that one is necessary for the people's case."
Sandra Flannery wanted the wanking: "Your Honor, as the court knows, the defendant had some binoculars in his briefcase. Also in his briefcase were the components of the device that he used to start fires. I believe that this passage ties the binoculars to the setting of fires. And it also indicated that one of the benefits he derived from setting fires was that at a later opportunity, he could relive the fires in his mind and have the sexual excitement that the fire provided."
The judge said to her, "Well, that's a good argument. I think that the first sentence is not particularly objectionable. But what is objectionable is that 'he fondled his cock, and then unzipping his pants and reliving the excitement.' "
The last and best deletion took place near the end of the session, when the judge said, "And then on page three-fifty-nine, I agree with the defense about the line, 'With an obscene acronym across the front of it.' That comes out."
The excised acronym was for "Tactical Watershed Attack Team."
Chapter 18
UNCHARGED ACTS
The prosecutors called most of the witnesses from the Pillow Pyro Task Force whose testimony had helped to convict John Orr in Fresno. Now they were testifying to "uncharged acts," as though somehow, ordinary inhabitants of planet earth could hear all of that and not get a pretty good idea that the man seated before them, more likely than not, had some character flaws.
Glen Lucero came back to talk about the incendiary device recovered from Stats Floral in Redondo Beach, which seemed like a lifetime ago. Peter Giannini made good attempts with each witness, pointing out discrepancies such as that the fireman who'd found that incendiary device had said it contained six to eight matches, but Lucero had found only three, marking the "signature" of the Pillow Pyro arsonist. But it was all cumulative, mistakes and all, those crushing "uncharged" crimes that were being dumped on the table.
A former employee of Ole's sister store in Pasadena testified about an attempted arson that her store had experienced three months after the disaster in South Pasadena. She told of finding an incendiary device consisting of a cigarette and matches held together by a rubber band. The jury was to be reminded that in John Orr's novel, his fictional arsonist tries to torch a store after the stupid cops fail to give him "credit" for the calamity he's wreaked at Cal's in South Pasadena.
When Mike Matassa testified, it was to an abbreviated version of all that the Pillow Pyro Task Force had done during its existence, including the arrest of John Orr. But what most hurt the defense were the questions by Cabral concerning the guilty pleas.
Matassa's job was to sit there like a ventriloquist's dummy and say, "Yes."
Cabral asked, "Special Agent Matassa, on March twenty-fourth, 1993, were you in the state district courthouse for the Central District of California, number one?"
"Yes," said the witness.
And then Cabral asked a series of questions to establish what had been going on in the courtroom that day, questions dealing with John Orr's having given affirmative answers to understanding the charges, and to his plea on the arson counts from Atascadero.
Finally Cabral said, "And was he asked how he pled to the December fourteenth, 1990, Builder's Emporium fire in Los Angeles County?"
"Yes," said the witness.
"And how did he plead?"
"Guilty."
"And did the court say: 'On December fourteenth, 1990, sometime before one p. M., did you enter the Builder's Emporium, located at six-six-oh-one Laurel Canyon Boulevard, North Hollywood, California? Did you then place a lit incendiary device in pillows located inside of the Builder's Emporium with the intention of starting a fire that would damage property in the store?' What was his response to that?"
"Yes."
"I have no further questions," said Mike Cabral.
And all of the lawyers could spend days and weeks, and call their hundred witnesses, and argue and harangue, but when it got right down to it, any layman could see that prior convictions and uncharged acts could cripple a defense, but guilty pleas cou
ld inflict fatal injuries. Hearing of guilty pleas, the jury loses its ability to rationalize away prior convictions which may have been based upon inadequate representation, or law-enforcement malfeasance, or erroneous testimony.
When the jury hears the words of acknowledgment that were uttered by a person accused of violent serial crime, it's less a crippling blow than a beheading. That Friday afternoon, sixteen days after the start of John Orr's murder trial, the Fire Monster was heard to roar.
On Tuesday, May 26, one of the jurors approached the bailiff and ratted out Juror Number Ten for doing a crossword puzzle during the taking of testimony. The judge and the lawyers had a long conversation before the jurors were seated, and they finally decided that the matter could be settled by a general warning from the bench.
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?"
Fire Lover (2002) Page 29
