Fire Lover (28 page)

"Would it indicate that at one time it had been glued into the album, then removed and taped in the album?"

"No."

"Well, you wouldn't put both glue and tape on at the same time, would you?"

"No."

"How long did he have the beard after you were married?"

"I would just guess maybe February . . ."

McCann interrupted to say, "I don't want her to guess, Your Honor."

Faller said, "Well, he may not want her to, but she can give her best estimate of what she recalls."

"You may give your best estimate, Mrs. Orr," the judge said.

"February, March," she said. "I'm just guessing."

About the facial hair, the government called a woman as a rebuttal witness who allegedly had had dinner at the 1987 conference with John Orr during a time when he was "happily" married. Apparently, neither the government nor the defense cared to get into details of their evening together.

The rebuttal witness was a claims adjustor for a major insurance company. The questions to her were very brief and to the point.

"Have you had occasion to go to conferences concerning the subject of arson?" Carl Faller asked.

"I have actually only gone to one seminar," she replied.

"When was that?"

"It was in January 1987."

"Where did that take place?"

"In Fresno," she said.

"And while you were at that conference in January 1987, did you see the defendant, John Orr?"

"Yes."

"And when you saw the defendant Orr at the conference, did he have a full beard?"

"No," she replied.

"Thank you. No further questions," Faller said.

The judge said, "Mr. McCann?"

"No questions, Your Honor," said Doug McCann.

At 1:00 p. M. on the fifth day, the government addressed the jury with a closing argument. Patrick Hanly began his summation by reminding the jury that the defense agreed in opening statement that one person started all five fires: the two in Fresno on January 15, 1987, the one in Tulare on the sixteenth, and two in Bakersfield, also on the sixteenth.

It didn't take the prosecutor long to get into the defendant's manuscript, wherein his fictional arsonist started fires in a fabrics store that he called "Fabric Plus." Hanly also reminded the jury that in the novel there was a line which read, "Most of the fires started just off of the freeway," as did the actual fires.

Hanly described how the fire at the House of Fabrics fit the scenario of the fictional fabric store in the novel, and he reminded the jury that the defendant had checked out of his hotel at 6:51 a. M. on the last day of the seminar, and had all day to cruise down the freeway setting fires. With each and every point he made, Patrick Hanly would point to blowups of the text from Points of Origin, emphasizing again and again that the book was really not a novel but a diary.

As to the alleged conspiracy, he said, "There is no evidence whatsoever that the government had the manuscript before the fingerprint was identified. The defense has tried to paint a picture of how the government got the manuscript, and then magically, the defendant's fingerprint was discovered on the yellow piece of paper. Well, quite simply, that is not true."

Referring to the fingerprint expert from the Los Angeles County Sheriff's Department who had made the identification, he reminded them that the expert didn't know John Orr, didn't know he was writing a book, didn't know he was a fireman, didn't know anything about the case. The letters were summarized, and it appeared that they carried more weight with prosecutors than did the manuscript itself.

Some observers thought that more damaging than the letters was the testimony about the tracking device. Hanly said, "So at some point John Orr knows he's a suspect. Does he go to the police? Does he contact his superiors?

"If you recall Agent Matassa's testimony as he reread the manuscript, there was a passage about how, if the arsonist knew the government was on to him, the fires would stop. And guess what? After March twenty
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ninth, 1991, they stopped."

The defense got its chance at 2:20 p. M., after a short recess.

"Good afternoon," defense counsel began. "As you are aware, the government gets two shots at closing argument. They will be able to respond to whatever I have to say here, and there are a couple of reasons for that. The court will tell you that the government bears the burden of proving the case beyond a reasonable doubt. And the fact that they argue twice, that's simply our system."

When he discussed his theory that the book manuscript was in the hands of the task force prior to the alleged fingerprint match, he said, "Why is Matassa so adamant that this guy was not a suspect until April seventeenth, 1991? It's obvious, because a week before that they have his photos in the lineup." That, in reference to Ken Croke transposing dates on his photo spreads.

"How do we know if they had the manuscript or not? Guess what? In whatever month, it happened after the fingerprint match, according to their version."

It is possible that the defense lawyer's fervor and machine-gun oratory covered up some of the confusing syntax as to the fingerprint itself: "Because Casey comes in here and on direct testimony, talking about the yellow paper, he's looking over at the jury saying, 'I remember this. I remember that.' And I asked him some tough questions like 'Hey, there's no documentation.' He doesn't look over here. There is not documentation. Why should we say, 'Casey, you told us the truth'? Because you happen to work for the fire department?

Because you happen to look like a guy who may tell the truth?"

He went on for a while about the framers of the Constitution, and the jury system, and how the witness Conway Lu told him that the yellow notebook paper looked different from what was presented in court.

And then he said, "Some yellow paper was found. This is what the government presents us, this came from that fire. Now, hold it a minute there. This thing is burnt. It looks like it came from a fire. The government can say defense counsel has not proved to you that there was a conspiracy, or that someone switched the paper. Hey, that's not our burden. It's their burden to slam-dunk it. You have the right to question if what they are telling you is true. Remember, this isn't Perry Mason. I didn't bring in the arsonist. That's not going to happen. It's not up to the defendant to bring in the actual guy."

Doug McCann portrayed the witnesses who were shown photo lineups as being uncertain or wrong, and he criticized Matassa for not showing the dissimilarities in the book manuscript along with the similarities.

As he was winding down, he returned to the fingerprint: "Total unreliability as to Casey. The guy was putting John Orr on his resume. Are we going to believe Casey because he's a fire captain and we are not going to believe Conway Lu? Conway Lu is telling us that the paper is entirely different from what he saw. Conway Lu tells us that there were two pieces, not one piece. Casey said there was definitely one piece."

About the fingerprint expert, Richard Kinney, he said, "Kinney's conclusion in '89 was that there were negative results. That means a finding that the print was not the defendant's. . . . The bottom line is, the only natural conclusion is, he was not looking at the same latent print, because the positive match contained thirteen identifiable points at least. It was an obvious match. This taints the chain of custody again, because in the middle of all that, a guy is looking at a thing over a two-year period, and was looking at different things.

"The only natural conclusion is, he wasn't mistaken in 1989. He was looking at a latent print that wasn't John Orr's and he came to a conclusion that it wasn't John Orr's. He's in the same government that all these guys in suits are in.

"I'm just about finished here. The parties have agreed to certain facts that have been stated to you. . . . The government believes a man was seen at a fire scene by their witness. Defense counsel believes him. He saw the actual arsonist who was in his mid-twenties. How can you possibly say yes beyond a reasonable doubt when they are describing him in his mid
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twenties? How can you say it's John Orr when the man was in his mid-twenties and he had jet-black hair? That's reasonable doubt as to Family Bargain Center, but also CraftMart. That's reasonable doubt as to all of the charges. Thank you very much."

Assistant U. S. Attorney Carl Faller wasted no time in closing arguments. He stood and said, "There's an old saying that's been around the courtrooms a lot longer than I have been, that says when the facts are against me, I argue the law. When the law is against me, I argue the facts. When they are both against me, I kind of stand up and scream like hell and then I put the prosecution on trial. I put the policemen on trial. I put the government on trial, trying to deflect attention from the evidence."

The prosecutor went point by point through Douglas McCann's closing argument, and then addressed the fingerprint evidence: "If it were a perfect world, this case should have been over in 1989, there's no doubt about that. The defendant should have been convicted three years ago, but he wasn't because Dick Kinney made a mistake."

When he got to the black bag seized on the day of arrest, Faller said, "Now, the idea, I suppose, is that the defense wants you to think that these items were here because the defendant was using them in training other firefighters, and there was some talk about one session that Joe Lopez went to where he was requested by the defendant to construct a device for one training session. Well, when you start to look at what's in here and start to realize how many packs of cigarettes this non
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smoker had, he must've been going to train every firefighter in Los Angeles."

The prosecutor reminded the jury about the tracking device, and that arsons at retail stores had stopped when the defendant was informed that the Pillow Pyro Task Force was in existence.

Referring to the manuscript, Faller said, "The Hancock Fabrics fire jumps out at you. You could see that building burning on the page. Every time we don't want to believe that an arson investigator like the defendant would be starting fires that he's sworn to put out, that he's putting the very people at risk that he's sworn to save, you keep running into another fact. And pretty soon, your common sense, your reason is just overwhelmed.

"Ladies and gentlemen," Faller continued, "the door is finally about to close. We don't care why he did it. All we care about, and all you can care about, is that he did it. And the evidence has proven that he did it. And based upon that, the only rational and reasonable verdict is that the defendant is guilty of each of the charges in the indictment. Thank you."

During recess when neither the judge nor the jury were in the courtroom, Carl Faller turned to the defense table, and referring to McCann's characterization of prosecutorial misconduct, said, "That was a cheap shot."

"Well, you've been making cheap shots," McCann retorted.

More words were exchanged, and suddenly Carl Faller was crossing the space between counsel tables heading for McCann. John Orr stood up, and the marshals jumped up and ran forward, getting between the attorneys.

Judge Oliver Wanger was not a big man, but he had a big voice. When he returned from lunch he looked like he'd just been told his egg salad was full of salmonella. "I've been told there was almost a fight in my court," he said, glaring at the lawyers.

Douglas McCann, who was smaller than Carl Faller, said, "He's a big man, Your Honor. It was very intimidating."

Pat Hanly interceded and said, "It was nothing, Your Honor."

The judge let the attorneys know that it had better be over.

Then the jury was brought back for their instructions from the judge as to the law and their duty.

After all of Douglas McCann's objections were made for the record, the judge addressed the jury's deliberation time, saying, "My inclination would be to let them go at five p. M."

"I agree," Faller said. "They've had a long day."

The judge turned to the defense lawyer and said, "Mr. McCann, do you have any view on that?"

"Continuous deliberations," McCann replied. "Through the night, whatever."

"Is that your preference?" the judge asked.

Douglas McCann relented: "Whatever the Court would like to do."

The judge said, "Thank you, Mr. McCann. We stand in recess."

If Douglas McCann had been completely serious about the jury not going to bed until they reached a verdict, they'd have needed a sack full of No-Doz. The jury went out on Tuesday, July 28.

Normally, the prosecution is not happy when a jury is out too long. On Wednesday at 1:40 p. M. John Orr's jury wanted to see the so-called short version of Points of Origin. And they indicated that they might want to see the entire manuscript as well. It provoked legal wrangling.

Pat Hanly said to Judge Wanger, "I don't want the jury to think that they cannot have the full manuscript because we don't want them to have it. It was the defense's request to keep the entire manuscript out."

McCann did not agree: "Your Honor, I'm afraid for the jurors to read about a rape scene. But I'm willing to agree to let it in if they want to redact it."