Fire Lover (46 page)

It all had to be read, and then the question was asked, "Ladies and gentlemen of the jury, are these your verdicts, so say you one, so say you all?"

Collectively, they answered yes, and then individually, all twelve had to answer in the affirmative.

When it was over, Judge Perry said, "Let me address the foreperson regarding count six. Is it your view that this jury is hopelessly deadlocked on this count?"

The foreperson said, "Yes, it is."

"Do the people require any additional inquiry?"

"No, Your Honor," said Cabral.

"Are you moving to dismiss count six?" the judge asked.

"Yes, Your Honor," said Cabral. "We would."

"All right," said the judge. "That count will be dismissed."

And John Orr was acquitted of setting the Warner Brothers Studios fire.

Before dismissing the jury, the judge said, "All right, ladies and gentlemen, in light of these verdicts, there will be a penalty phase. And we would start that penalty phase on Tuesday morning at eight-thirty. I want to tell you that I believe there will be a considerable amount of publicity this weekend regarding your verdict. And I want to warn you again that you must be cautious, that you avoid any outside influences from family, friends, or loved ones, regarding the verdicts, and particularly not watch any television, news broadcasts, or read anything in the newspaper about this verdict. Thank you very much."

After the jury was dismissed, there were some matters to be taken up that were highly disturbing to Ed Rucker, who said to the judge, "There are certain issues that come to mind that the court should litigate, and I don't think Mr. Orr should somehow be put at a disadvantage because we haven't raised them earlier."

"Go ahead," said the judge.

"I believe the people intend to offer evidence of four additional fires that were not litigated during the trial."

"Well, let's ask Mr. Cabral," said the judge.

"People's Department Stores, Mort's Department Store, Bell's Cottage, and Howie's Market," said Cabral.

It became very clear to Ed Rucker that Mike Cabral, who had once suggested an off-the-record plea bargain and said he wasn't particularly interested in putting John Orr to death, was now preparing the syringe with more uncharged fires.

Rucker later said, "When I asked Cabral why he was doing this, he indicated that he'd had some sort of revelation over the weekend and thought now it was his duty to go all the way to the death house with John Orr."

Peter Giannini thought that the victims' families and renewed media interest had influenced Cabral's decision.

Mike Cabral was well aware that Ed Rucker was furious with him, especially when the towering defense lawyer turned to him and said, "Well, let's get to the killing."

As though the jury hadn't heard about enough fires while they were deciding whether to let John Orr live or die, Cabral wanted them to know that there were other unlitigated fires that had been set in retail stores. And Mike Cabral now routinely referenced John Orr's novel as if it were a diary:

"They are not merely property crimes set to burn a structure down," he said to the judge, "but the purpose of the defendant in setting these fires, as noted in his manuscript, is to cause havoc to the individuals inside the location."

The judge agreed, saying, "I do think that given the fact that the fires in the other establishments were open retail establishments where people were likely to be there, that that is sufficient to bring them within section one-ninety-point-three."

Rucker tried to keep the prosecutor from piling on at this critical juncture, and said, "I am not going to quarrel with the court's ruling, but I believe the people will offer evidence that these are time-delayed fires. As such it would be our position that it would be difficult to assume that the acts were directed at a person when it was unknown who would be in the store, or whether anyone would be in the store at the time they were ignited."

Judge Perry replied, "Well, I think you start with the crime of arson itself. And arson is categorized in some sections of the penal code as a crime of violence isn't it?"

"A serious felony," said Cabral.

"It is a serious felony," the judge agreed. "And I just think that under the circumstance where the defendant is alleged to have set fires, albeit with a time-delayed device in an open retail establishment, I think that is enough."

"All right," Rucker said. "Just so that the record is clear, we would object on constitutional grounds that this would be a violation of due process for allowing unlimited or nonrestricted evidence that the people intend to offer."

When the jury was brought into the courtroom, Judge Perry read the lengthy instructions regarding murder in the first degree, with special circumstances alleged which had been found true, namely that there had been multiple fatalities in the Ole's fire.

"In the guilt phase of this trial," he said, "you were instructed that you could not consider sympathy or sentiment. You were also instructed that penalty or punishment was not to be discussed or considered. Those instructions no longer apply. You may now consider sympathy, and you must consider the consequences of your verdict. It is up to the jury to decide whether the defendant shall be sentenced to life imprisonment without the possibility of parole, or death."

Sandra Flannery was up first, and she said to the jury, "At the end of this case, we will maintain that the aggravating factors are so substantial in relationship to any mitigating factors, that the penalty of death is warranted, and that it is the only morally appropriate punishment in this case. Having set a fire that killed four people, John Orr continued setting fires, endangering the lives of more people. Under the guise of being the protector of good, John Orr was, in fact, the perpetrator of evil. At the end of this, we will zealously urge you to impose the penalty of death as the only morally appropriate sentence in this case. Thank you."

When Ed Rucker stood, he said, "Well, I hoped we wouldn't be here. But we've reached a point where we're now going to embark together on a very difficult journey that's going to affect all of us. And you have to decide whether it's appropriate, it's just, it's something your conscience can live with, that John Orr should spend every single day of the rest of his life in a cell until he dies in that cell. Or whether he's taken, strapped in a chair, and given lethal gas to kill him.

"Now, to assist you, we would hope to present to you, that like all of us, all human beings, there are parts to him. He is not a one-dimensional monster. He is not just a man who has set fires. He's a man who's lived a life, perhaps not an exemplary life, but a life. And we'll present to you some family members to talk to you about his boyhood, his joining the air force and the fire department.

"I'm confident that you can make the right decision here if you're guided by the goals of punishment, which would be to protect society and to punish John Orr.

And at the conclusion, I'm going to ask you to spare this man's life. I'm going to argue to you from my heart that living the rest of his life in a cell is punishment that protects society from him forever. And it's one you should all be satisfied with."

And then Mike Cabral began to call the family members of the Ole's victims, and it was heartrending. Luis Cetina, older brother of Jimmy, told about how he'd wanted to play catch with Jimmy on that last day, but when Jimmy didn't, Luis had said, "I'm not gonna play catch with you anymore."

Little memories produced big guilt. And he told about all the promise that the gifted young athlete had had, and how Jimmy was so loved that the church could not hold all of the mourners. He told of the Volkswagen that his family had bought but never driven because they could not afford insurance. He told them that the first time the car was ever driven was behind the hearse that carried Jimmy Cetina's body to the cemetery.

After the jury had filed out, Ed Rucker had something to say to the court: "I would object to the manner and content of the testimony elicited from Mr. Cetina for victim impact. The testimony is elicited in a narrative fashion that allows a witness to speak at some length. We're at a very distinct disadvantage in this type of proceeding, in that to object is going to result in resentment from the jurors. Consequently, I would ask for the court's assistance to try and focus victim-impact testimony. I understand the difficulty of all this, but nonetheless, we have to have some order in a process even as bizarre as deciding whether someone is going to die or not."

Judge Perry said, "I felt that Mr. Cetina's testimony was generally responsive to the questions that were posed to him, and I felt that he was expressing in his terms what the loss of his brother had meant to him and to the family. And I felt that that was appropriate. Mr. Rucker, you know, I have great admiration for you and your opinion on such things. We're here for them to describe what the impact has been to them, and I'll allow it. But your concerns are on the record, and I will try to be mindful of them."

On Wednesday, July 1, the prosecution was allowed to introduce an uncharged count, the arson at People's Department Store. Mike Cabral called a witness, and Peter Giannini cross-examined, and the jurors sat gaping, because they'd gone through this for weeks. They'd already convicted the defendant. It had to have been the most profound feeling of deja vu that they'd ever experienced.

One of the more macabre moments took place when Peter Giannini was cross
-
examining an arson investigator. The courtroom was darkened so that the investigator could comment on a scene being shown on the overhead projector.

Giannini couldn't find the play button on the video machine, and said, "Okay, let's see. It's so dark in here. Anybody got a match?"

It would have been perfect, and what this theater deserved, if John Orr had popped up and said, "Yeah, I've got three!"

Chapter
21

There were several witnesses from College Hills in court to tell the jury how the fire had destroyed everything they'd owned, and how it had such a profound effect on their lives. And Cabral introduced evidence from the Howie's Market potato-chip fire of February 4, 1985, and had an expert say that it had been set with an incendiary device like the others. He called investigators Carl Costanzo from the Burbank Police Department and Steve Patterson from the Burbank Fire Department to testify about the Mort's Surplus fire, one of those that John Orr had videotaped. Steve Patterson testified that he'd not known that John Orr had arrived at the same time as the first engines.

And through all of this overkill, Peter Giannini asked few questions or sometimes none, because what was the point? The defendant had already been convicted of arson in two trials, and he'd pled guilty at another one. How many more arson counts were needed?

The three-year statute of limitations on arson had barred the district attorney's office from charging John Orr with some of the retail-store fires and brush fires that the task force believed the defendant had committed. However, Section 1101 (b) of the Evidence Code allowed the introduction of "uncharged crimes" if they could be demonstrated by a preponderance of evidence to be a likely M. O. crime committed by the defendant. In the penalty phase of a capital murder trial, any criminal activity that demonstrated the defendant's propensity for force or violence could be introduced and argued.

To nonlawyers it simply meant that the jury had to endure another mini-trial, and had to hear more testimony and more argument about what a bad guy the defendant really was, after they'd already thought he was bad enough to convict him of capital murder. It became a trial after a trial, with the statute of limitations tossed out the window.

At the end of it all, one realized that nonlawyers, using mere words, could never adequately render a portrait of the world inside the litigation tanks of America. It would take a painting by Salvador Dali.

The prosecution called the owner of Bell's Cottage, a gift and home-accessories store in Burbank, to testify about a Dumpster fire that had broken out by the rear door of her business. When she'd discovered the blaze, she tried to call 911 but her phone was dead, and when she'd hurried around to the back of the building, the structure was in flames, and so was her car.

A man and two women had been standing nearby watching the fire. The man said he was a deputy sheriff, and asked about a house adjacent to her business. When she'd told him that an invalid lived in the house, the man leaped over the fence and ran to the door to warn the occupant.

In a few minutes, all of the fire watchers had left the scene, including the would-be rescuer. Five months later, Detective Costanzo of the Burbank P. D. showed the store owner a six-pak photo spread and she'd identified John Orr as being the "deputy sheriff."

Giannini asked as many questions as he should have asked. Then Sandra Flannery asked the witness if the "deputy sheriff" was in the courtroom, and the witness pointed to John Orr.

This was another of the fires in which Mike Cabral and Sandra Flannery believed that John Orr had been showing the two faces of the firefighters in his novel. Bad Aaron Stiles had set the Bell's Cottage fire, and good Phil Langtree had had a sudden attack of remorse and came to the rescue by leaping over a fence to warn an invalid. Even though, by flashing a badge and speaking to the arson victim, he'd exposed himself to the peril of being identified.