Fire Lover (25 page)

"You ever heard of the term 'chain of custody'?"

"Yes," Casey answered, with that blue
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eyed Panhandle squint that said: You are pissing me off, boy!

There followed a series of short questions about missing links in the chain of custody, dealing with absent evidence envelopes and how some investigators had initialed the yellow notepaper, and the fact that it had only been signed by Casey in September 1991, when the government was putting together its case for the search warrant.

McCann said, "You didn't want to disturb anything on that yellow paper. That's why you didn't put a little pencil mark
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'one-sixteen-eighty-seven'
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is that what you are saying?"

"That's correct," Casey answered.

Then, after trying to indicate that the packaging, forwarding, unpackaging, and examining of the yellow notebook paper was sloppy if not suspicious, McCann said, "You have testified that you are an expert in cause and origin?"

"Yes," Casey answered.

"In fact, have you attended classes that John Orr instructed?"

"That's correct," Casey answered.

Questions continued coming fast, and not for the last time, the court reporter had to ask McCann to slow down his hyperkinetic delivery. The thrust of the questions was designed to persuade the jury that the piece of notebook paper in the courtroom was not the paper that Casey had found, especially because the paper had been torn into two pieces.

Nothing had been implied as yet about Casey being part of a conspiracy. At this juncture, the defense was hinting at careless collection and marking of evidence, and that Casey was there in court identifying a piece of paper that the government told him was the paper he'd collected in 1987, but that he really had no idea if it was or was not.

On the second day of the Fresno trial a Los Angeles Times news story was headlined: FIRE CAPTAIN CALLS ARSON TRIAL A CONSPIRACY.

As his trial opened in U. S. District Court, Glendale Fire Capt. John Orr defiantly charged that the government's case linking him to five Central Valley arsons in January, 1987, is a conspiracy of lies to railroad an innocent man.

"Have you seen the movie 'JFK'?" he asked The Times during a break in the opening arguments Tuesday. "They went down to the morgue and placed Oswald's hand on the butt of that rifle . . . The only difference is that my hand wasn't cold."

Well, that approach was guaranteed to draw a crowd in the court of public opinion, and it resulted in an inordinate amount of coverage in the print and electronic media. In 1992 the public's appetite for government conspiracy and police malfeasance already had been whetted, not just by the film JFK, but by the Rodney King beating and other high-profile cases.

John Orr didn't think that his thirty-two
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year-old lawyer was old enough, smart enough, or even graceful enough. John Orr complained that his lawyer had tripped over his own briefcase three times while he was "flitting" around the courtroom. He thought McCann's machine-gun oratory was off-putting to the conservative folks of Fresno. And he deeply resented that his defense was costing him and Wanda forty thousand dollars.

But for all that, he had a lawyer with enormous intensity and belief in his client, and the fee was far less than many would have charged for such a difficult, time
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consuming case. Douglas McCann had a good sense of humor, which his client was in no mood to appreciate, and his youthful high-wire style in the courtroom, with hair flying and eyes blazing
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and the court reporter pleading for him to slow down
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wasn't all bad, given what he was up against. The creation of reasonable doubt in the government's evidence was his only option. A phlegmatic approach when one is making an extravagant allegation against the U. S. government might not have carried the emotional appeal necessary. He needed, as it were, fire in his presentation.

Not the first to use the game of baseball in portraying his feelings about the crux of the case, McCann said, "Ordinarily, there's no defense against a fingerprint. It'll knock you right out of the box."

The defense was obliged to confront a former clerk from Hancock Fabrics in Bakersfield who had, in 1987, given a description that was very close to John Orr's at the time, and she related how she'd smelled cigarette smoke but that the suspect did not have a cigarette in his hand when she'd seen him. And she described how she'd picked John Orr out of a photo lineup. The defense did a good job with a good witness, and before she left the stand she admitted that she was only "seventy percent" certain that the defendant was the man she'd seen in the store.

The next witness called was Clive T. Barnum, the crusty fingerprint expert for ATF who'd been doing his job for thirty
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five years. Barnum testified as to how he'd processed the piece of notebook paper that had been forwarded to his lab by Marvin Casey in 1987, and that the latent print that popped out of the ninhydrin solution was a very clear one that even a layman could read. The exchange between defense counsel and the grizzled lawman perked up the press a bit.

"Was it a pretty obvious make?" McCann asked Barnum, referring to the match.

"Well, I certainly think thirteen is a considerable number of points," Barnum answered, referring to the fingerprint points of comparison.

"If you were comparing an exemplar to a latent and there were seven points, you would make a note of it, correct?"

"Make a note of it how?"

"Would there be a number less than seven that you wouldn't draw a conclusion at?"

"There's no certain number you need for a positive identification of fingerprints," Barnum said.

"Even if there were only three points that matched?"

"I would have to see the print. I would have to examine it."

"Because it's more than just the points?"

"I know where you're going," Barnum said. "I know where you're going. I'd have to see the print."

"I don't think you're qualified as a psychic yet," McCann countered.

"Well, I know where you're going," Barnum repeated.

"Well, where am I going?" McCann challenged.

"You're going to start to count down."

"Actually, you don't know where I'm going. Where I'm going is, I'd like to know if you had five or six points of comparison, in some situations you'd draw a conclusion that there was a match, isn't that true?"

Not buying into hypotheticals, the crafty old fingerprint expert said, "I'd have to see the print."

When McCann asked how long a latent fingerprint could remain on a piece of paper, Barnum answered, "Forty years, under laser enhancement."

Carl Faller's next witness was Jerry Taylor, an explosives-enforcement officer for ATF who testified to M. O., crucial in linking this fire series as well as establishing a foundation for a future prosecution of the Los Angeles series. After lengthy testimony about incendiary delay devices, including how and where they were placed and in what sort of retail stores, Faller asked, "Now, based upon your training and experience, did you come to the conclusion as to whether the fires were started by the same individual?"

The witness replied, "Those fires were not only started by the same individual, but the same individual built the devices."

The last and most important witness of the day was Michael Matassa, and Doug McCann had to do his damage now if he had any chance of suggesting a government frame-up.

After being sworn, Mike Matassa informed the jury that he was the case agent in the matter at hand, and like almost every other law-enforcement witness, he said he'd been personally acquainted with the defendant for several years.

The first question from Pat Hanly seemed innocent enough, but it would prompt a lot of cross-examination. The prosecutor asked: "Now, could you please tell the ladies and gentlemen of the jury, when did Mr. Orr first become a suspect in this case?"

Mike Matassa answered, "April seventeenth, 1991."

"And why on that date?" Hanly asked.

"Because of a positive comparison by the Los Angeles Sheriff's Department between the known print of John Orr and a latent print that was recovered from the CraftMart device."

"Have you had an opportunity to review the manuscript Points of Origin?"

"Yes, I have."

"Now, how many different versions of the manuscript have you read?"

"Two."

"What is the difference?"

"Primarily, one version is shorter, and in that version the incendiary device consists of a match attached to a cigarette. In the second version, the incendiary device consists of a glob of glue attached to a cigarette."

"When did you become aware of the existence of the manuscript?"

"Late June or July of 1991."

"And how did that happen?"

"We became aware of that from Fire Marshal Chris Gray of the Glendale Fire Department."

The prosecutor then asked the witness to generally describe the story line, and Mike Matassa talked about Aaron Stiles, the arsonist, and how he travels to Fresno and sets fires in fabric stores, and also in Tulare and Bakersfield, always in foam products, using a delay device.

Then Hanly asked, "Is there any discussion in the book about what would happen if the arsonist knew that the information about the fires was being disseminated to law-enforcement agencies?"

The witness answered, "Yes, that he would then cease starting the fires."

"Is there any mention in the book about fires and their relationship to Fresno?"

"Yes, that they are always started close to the freeway."

Hanly then asked the witness to examine what Matassa called "the shorter version" of the manuscript, which was actually the first three chapters.

"When did you first become aware of this shorter version?" the prosecutor asked.

"December fourth, 1991," Matassa replied, indicating the day of arrest.

The witness described the material found at the time of the defendant's arrest, including the photos of the tracking device, paper bags, cigarettes, matches, rubber bands, and lighters. Then came questions about the interview of the prisoner at the police station.

"How would you characterize the defendant's attitude during the interview?" the prosecutor asked.

"It was a cat-and-mouse game. He was probing, trying to see how much information we had, how much evidence we had on him."

Of course, the defense objected to Matassa's conclusion, and the court sustained it. But Hanly wanted to stay with it and tried to lay a foundation that would permit Matassa to characterize the prisoner's responses.

Matassa told the jury that he'd conducted hundreds of interviews, and Hanly asked, "In fact, have you attended classes with the defendant on that subject?"

"Yes," the witness replied.

"And in those classes, did you go over how to interview witnesses?"

"Yes, we did."

Then, despite Douglas McCann's objection, the court permitted the witness to answer the next question: "How did the witness respond to your questioning?"

"By asking us questions along the lines of what type of evidence we had."

"And did he indicate whether he had actually found the tracking device?"

"Yes, he did. He said it made good grist for his book."

"During the interview, was the defendant asked anything about explaining his conduct?"

"Yes, we asked him if once he became convinced that we did have a case on him, would he then be willing to talk to us. And he said he would not close the door on that."

"Previous to that did the defendant say anything about lies?"

"Yes, he said he had interviewed hundreds of witnesses, and lying and guessing was part of the game. He implied that that's what he thought we were doing."

"That the evidence was all lies?"

"And guessing."

The prosecution then introduced the letters to literary agents and publishers, and had Matassa read them for the jury.

When the witness was given to the defense for cross-examination, Doug McCann had what he thought was a big surprise for the witness.

"One of the very first questions the government asked today was whether John Orr became a suspect on April seventeenth, 1991. Do you recall that question?"

"That's correct."

"Are you sure about that? Is that what you testified to here today?"

"April seventeenth is the day that the sheriff's department made the fingerprint comparison."

"He wasn't a suspect on April sixteenth, was he?"

"No."

Mike Matassa was obviously puzzled, not only by the question, but by the obvious relish with which it was asked.

McCann then dropped the hammer: "All right, are you aware that one week prior to April sixteenth, 1991, in Atascadero, California, Ken Croke had a photographic lineup with John Orr's photo in it? A week before this fingerprint result? You are not aware of that?"