Rucker reminded the jury that Sergeant Jack Palmer and other law-enforcement arson investigators had all called Ole's an accidental fire, and he said something interesting. "When Sergeant Jack Palmer says it's arson, it's arson. When he says it's not, it's not.
"How many men sit in jail cells right now, prison cells, on the testimony of these men? Now, none of these men in their entire professional careers was ever asked to reexamine one of these opinions. These are not rookies. These are not unqualified men. No prosecutor has ever come to them and said: 'You know what? I think you made a mistake.' Never. In fact, Deputy Rich Edwards worked under him, and could not name a single fire where he ever thought Sergeant Jack Palmer had made a mistake, not once. There were fifteen to twenty trained, experienced arson investigators there. Nobody disagreed."
Then Rucker began to examine the case, point by point, much as Cabral had done, but from his side of the courtroom. He talked about burn patterns, and shredded insulation, and charring, and twisted beams. And then he confronted the heart of the prosecutor's thesis: the polyfoam.
"Mr. Cabral is probably the most able prosecutor you're going to get in a courtroom, on this kind of case. Do you think after talking to Jack Palmer as many times as they have, if the facts would've changed his opinion, they would have asked him that? They didn't. They asked him very cleverly: 'Do you think that polyfoam on the floor is significant?' Well, yeah. But they didn't ask him: 'Does that change your opinion?'
"I asked him: 'Did anything you've learned during all of this change your opinion?' What did he answer? fNo.'"
During recess, in response to an objection by Cabral, the judge admonished Rucker about a reference to the fact that the jury was hearing a death-penalty case, making a life-and-death decision. The defense lawyer agreed that he wouldn't do that again.
After lunch it was back to ceiling leaks and even polyfoam, and a rehash of the testimony by Ole's employees, but the defense interpretation was that the polyfoam had been ignited by a drop-down fire.
Rucker was very effective when he got to the fires that the prosecution had called diversionary. He read to the jury the testimony of Pasadena arson investigator McClure, who had radioed for John Orr to assist him with his investigation at Albertson's Market. If the opinion of Sergeant Palmer and others that Ole's must be an accident was the heart of the defense case, the alibi time line was the lungs. Rucker indicated to the jury that it would have been impossible for John Orr to have set three fires and still have been where witnesses put him during crucial moments.
"We know that at seven-forty-five p. M. McClure pages Orr," Rucker told the jury. "At seven-forty-seven, they page Orr from Verdugo Dispatch. It's on the tape. McClure said that Orr was there with him for about fifteen or twenty minutes. The first call to the fire department for Ole's was at eight-oh-six. And we know that at eight-twenty-two Orr is calling dispatch. It's on the tape: 'I'm in South Pasadena. Here's the number at the gas station.'
"Let's say it takes fifteen minutes to drive from Ole's to Albertson's. If he's setting a device at Ole's, he drives to Albertson's and let's say he meets with McClure for fifteen minutes, not twenty. And then he's got to drive back to be near Ole's at eight-twenty-two at the gas station where he leaves the phone number.
"So, if as the prosecution tells you that he sets the device shortly before eight and drives to Albertson's in fifteen minutes, and stays there for fifteen minutes, and drives back to South Pasadena, there's no way he's getting back there at eight
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twenty-two. Can't do it. The only way it works is if he's near McClure in Pasadena on the night of the World Series. It could be he's in a bar having a drink, watching the game. He's near Pasadena. But here's the point: if he's near McClure in Pasadena at seven-forty-five, he's not setting any device at Ole's at eight, or even at s even-forty-five.
"And if you throw in there that the prosecution wants him also to have set a fire at Von's, down the street from Ole's, when's he going to do both of those? Get to Pasadena? Get back? It's not going to happen."
It was a very good alibi scenario that Ed Rucker had presented, and Cabral knew that he'd have to deal with it on rebuttal.
From that, Ed Rucker went to the manuscript of Points of Origin, and probably infuriated his client more than anything that had ever been said by lawyers on either side. Rucker said: "Now, the manuscript John Orr wrote, what's that do for us? One, it gives you an example of some real bad writing, I'll tell you that. But does it allow you to draw a conclusion that John Orr set the Ole's fire? The fact that something is fiction that's based on fact is just that, fiction. Every police officer who writes novels, every firefighter who writes novels, writes about what they know. They write about real fire, real crimes, changing the facts as best they can."
He pointed out that the scene John Orr wrote wherein the doomed child wants an ice cream from Baskin-Robbins was logical and coincidental, because there was a Baskin-Robbins store there by Ole's. And that it certainly didn't mean that he'd overheard the child talking while he was in the store setting an incendiary device.
Rucker discussed the witness who was the cop's wife, who remembered the defendant seven years after the Ole's fire when she'd seen his face on the news, and later testified that she'd seen him in the store on the night before the fire.
Rucker said, "Do you remember a person you walked by at a supermarket last week? How about the person that walked by you a month ago? A year ago? Two years ago?"
He reminded the jury that she had been with her husband at the grand jury where he was to testify to an entirely different aspect of the case, when she'd suddenly "volunteered" to tell the grand jury of having seen John Orr those many years ago, on the night before the fire.
Rucker said, "Why did the prosecutor use her, if he has a case that's beyond a reasonable doubt that this is an arson? Why would a prosecutor of his abilities, and he is good, put on a witness like that? He wouldn't need a witness like that, would he? But he did. And I think that tells you something.
"All right, this is it," Ed Rucker said. "I hate to stop talking. When I stop talking, that's it. Because I can't talk to you again, and the prosecution gets another argument, and I can't reply to it.
"But I am just going to tell you this: that mischaracterizing the facts doesn't change the facts. Telling you the ceiling line is here or the fire moved there doesn't establish that as a fact. It has got to be proved."
At this point in his closing it became more clear why he and Giannini had allowed a former deputy city attorney prosecutor and a retired deputy sheriff to sit on the jury. Rucker was depending on the law being carefully explained to these people, not just from the bench but in the jury room.
"You decide this case on the facts, and you follow the law," he said. "Because you don't want the oath you took to mean nothing. I am asking you, not for John Orr, I am asking you for the integrity of this system.
"The way you decide on those other fires, you decide. But on this one, on the Ole's fire, I am asking you to come back with a not-guilty verdict, because that is what the facts are, and that is what the law is. Thank you."
At 4:00 p. M. that day, Ed Rucker had distanced himself and his case from Peter Giannini and his case in very direct and forceful language. Ed Rucker hated the death penalty and would have accepted Cabral's tentative plea bargain in order to guarantee against it. He told his associates that he had to stop defending capital murder because he could no longer bear the responsibility and the toll that death
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penalty cases had taken on him.
In effect, Ed Rucker had given the jury permission to convict the defendant on the other arsons, but not on this one. He couldn't let them kill John Orr.
Chapter
20
The June gloom of Southern California had set in, but at least the forecast of possible showers had proven inaccurate on Thursday, June 11.
Peter Giannini got his chance at closing arguments that morning, quickly reminding the jury that John Orr had learned in San Luis Obispo that he was a suspect after finding the tracking device on his car. He said, "You heard a lot of argument from the prosecutors that he was trying to avoid detection. Well, he probably was. So keep that in mind when you're looking at these fires. There were no fires from that point until he was arrested, no fires similar to any of the ones that they'd been investigating. Now, that's a sign that he'd stopped."
Giannini was saying in effect that his client was a serial arsonist who'd been scared straight, a daring defense to say the least.
"So, in order for him to be guilty of the fires that happened after that, you would either have to believe that he'd changed his method or changed the type of fire. Why would somebody do that if they know they're being tracked? I don't think anybody will argue that John Orr was stupid."
This jury had heard innovation from both defense lawyers. Rucker had told them he didn't care much if they convicted John Orr of Giannini's fires so long as they acquitted him of the Ole's blaze. Giannini was saying that John Orr may have done all of the Pillow Pyro fires, but wasn't dumb enough to have done the oddball fires that had occurred just before his arrest. Neither of his attorneys was saying what John Orr said to everyone: That he had never set any fire, not one, not ever. And that he wanted to testify, but had been strongly cautioned against it. And that his guilty plea had been a legal ploy that supposedly would have allowed him to walk free by the year 2002, at the age of fifty-three.
Giannini began attacking the Hilldale and San Augustine testimony, as well as the Teletrac, which had only shown him in the general area of some fires.
He continued with the What is he, stupid? theme when he mentioned photos and videotapes that the task force had seized, saying, "After he knew that he was suspected of starting fires, he's going to put these pictures of fires up on the wall? Announcing that he had before-and-after pictures of a fire that, according to them, he'd started? Does that make sense to you?"
He tried to refute witnesses, and testimony, and warned against suppositions based on little evidence. And then he went to the College Hills fire, briefly depicting the prosecution's case as being based on the testimony of the air force major and the woman in whose bathroom John Orr had stood, unrecognized, a short time after she'd allegedly seen him at the fire's point of origin.
It was probably Peter Giannini's best defense work. He portrayed the air force major as "a man that claims he has some kind of special memory powers that the rest of us don't have." He pointed out that the major had said that there were no cars on the street in College Hills, and that it had been an unusually quiet day, yet the firefighter witnesses said that traffic was so heavy they had to approach on the wrong side of the road.
"The man with the photographic memory," Giannini said, "had memory failure."
Once again, Giannini returned to the What is he, stupid? defense, saying, "If John Orr had actually been there setting that fire, there is no way he'd have gone up into that apartment with Gomez and Masucci."
When he got to the Warner Brothers fire, he was equally dismissive, if not contemptuous, of Burbank arson investigator Steve Patterson's contention that he thought it had been an incendiary fire based on accelerants. Giannini said, "This is an open TV set. It's like an unframed house in the back. I guess it means that John Orr had somehow gotten through one of those security-guard gates with, what? A gallon of gas? And spread it all the way along the back of the set?"
About the alleged pretense that the defendant hadn't known his way to Warner Brothers Studios, Giannini said, "John Orr didn't say, 'I don't know how to get to the lot.' He said, 'I don't know how to get to where the fire is.' " Giannini called it a "mix-up."
As to the security director who'd remembered Captain Orr having been at the fire in progress, Giannini said, "His recollection is that John Orr came while the fire was still burning. Well, nobody else remembers that. Nobody else testified to that. How do we know he's wrong? There was in fact a parent-teacher conference that was scheduled at three-thirty to three
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forty, and it lasted thirty minutes to thirty
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five minutes. It's also backed up by the Teletrac."
At one point he said, "He knew about fires. He was at a lot of fires. He was supposed to be at a lot of fires. So the fact that he's there, and he's the fire guy, means he was doing his job. That's all it means. We've learned from all the investigators who we've talked to that that's the only time you catch somebody, if you're going to catch them.
"This is not about fires other than the ones that he's charged with here. It's not about whether he was a good arson investigator. The common threads that Ms. Flannery told you about are essentially common to all arson investigators. So look at the facts, testimony, and the exhibits. Apply the law, and I think when you do, you'll find that none of these charges have been proved beyond a reasonable doubt. I think you'll find that the facts can reasonably be interpreted to point to innocence for each one of these particular fires. And when you find that, your job is done. You must find him not guilty. And I ask you to find him not guilty. Thank you."