His modus operandi was to set fires using an
incendiary timing-device, usually a cigarette with a rubber band wrapped
around the end wedged into a matchbook, in stores while they were open
and populated. He would set small fires often in the grassy hills, in
order to draw firefighters, leaving fires set in more congested areas
On October 10, 1984, in South Pasadena, California, a
major fire broke out at an Ole's Home Center hardware store located in a
shopping plaza. The store was completely destroyed by the fire, and four
people died in the blaze, including a two year old child. On the
following day, arson investigators from around southern California
converged on the destroyed store, and declared the cause to be an
electrical fire. However, John Orr, as an arson investigator, insisted
that the cause was arson.
Investigations later showed that the fire started in
highly-flammable polyurethane products, which caught fire very quickly,
causing the fire to flashover very rapidly. After his arrest in 1991 and
subsequent conviction for a series of other arson fires not related to
the 1984 Ole's fire, Orr was charged with arson in the blaze by
investigators due to a forensic re-evaluation of the causes of the fire,
circumstantial evidence and a highly detailed description of a similar
fire in his novel Points of Origin that bore several almost perfect
similarities with the real-life 1984 fire. Orr was convicted and
sentenced to life in prison in 1998. Orr insists that he is innocent
with regards to the 1984 hardware store fire.
During March 1989, another series of arsons were
committed along the California coast in close conjunction with a
conference of arson investigators in Pacific Grove, California. By
comparing the list of attendees from the Fresno conference with the list
of attendees at the Pacific Grove conference, Captain Casey of the BFD
was able to create a short list of ten suspects. Orr was on Casey's
short list, but all of the people on this short list were cleared of
suspicion when their fingerprints were compared with the fingerprint
that Casey had recovered from the piece of notebook paper found at one
of the arson crime scenes.
In late 1990 and early 1991, another series of arson
fires broke out in southern California, this time in and around the Los
Angeles metropolitan area. As a result, a large task force, nicknamed
the Pillow Pyro Task Force (a reference to the arson fires set in
pillows) was formed to apprehend the arsonist.
On March 29, 1991, Tom Campuzanno of the Los Angeles
Arson Task Force circulated a flier at a meeting of the Fire
Investigators Regional Strike Team (FIRST), an organization formed by a
group of smaller cities in and around Los Angeles County that did not
have their own staff of arson investigators. The flier described the
modus operandi of the suspected serial arsonist in the Los Angeles area.
Scott Baker of the California State Fire Marshal's Office was at that
meeting and told Campuzanno about the series of arsons investigated by
Captain Casey of the BFD and about Casey's suspicions that the
perpetrator was an arson investigator from the Los Angeles area.
Consequently, Campuzanno and two of his colleagues met with Casey,
obtained a copy of the fingerprint that Casey had recovered, and matched
it to John Leonard Orr on April 17, 1991.
On July 31, 1992, a jury in a federal court convicted
Orr of three counts of arson in a five count indictment, and the judge
in that case sentenced Orr to three consecutive terms of ten years in
prison. However, Orr maintained and still maintains his innocence,
notwithstanding his subsequent guilty plea on March 24, 1993 to three
more counts of arson pursuant to a plea bargain agreement for an eight
count indictment that probably would have seen him paroled from federal
prison in the year 2002.
On June 25, 1998, a jury in a California state court
convicted Orr of four counts of first-degree murder from the 1984
hardware store fire with special circumstances in a twenty-five count
indictment, deadlocking on only one of the twenty-five counts, which was
subsequently dismissed at the request of the prosecution. When asked to
sentence Orr to the death penalty, the same state court jury deadlocked
eight to four in favor, and the judge in that prosecution sentenced Orr
to life plus 20 years in prison without the possibility of parole.
Orr is currently serving time in California state
prison to serve the remainder of his life sentence.
The story of John Orr has been chronicled by
bestselling true crime author Joseph Wambaugh in a book entitled Fire
Lover. Also, a film entitled Point of Origin starring Ray Liotta as John
Orr was released by the HBO network in the year 2002.
Furthermore, Orr wrote a novel titled Points of
Origin about a serial arsonist that happens to be a fireman. Arson
investigators believe that Orr chronicled the arson fires that he set in
the novel, and feel that some of the fires in the novel bear many
similarities with fires that they believe Orr actually set. Orr states
that the novel is a work of fiction and has no relation to any actual
events. In an interview, defending his manuscript, Orr has expressly
"The character of Aaron Styles was a composite of
arsonists I arrested."
Saying that his crimes showed “great violence and sophistication,”
a judge sentenced former Glendale arson investigator John Leonard
Orr to life in prison without the possibility of parole Thursday for
setting a fire that killed four people at a South Pasadena
Superior Court Judge Robert J.
Perry ordered the 17-year firefighting veteran to spend four consecutive
life terms in prison for the 1984 fire at Ole’s Home Center, in addition
to 20 years for other fires that damaged or destroyed dozens of homes in
La Canada and Glendale in the early 1990s.
“The enormity of the
defendant’s crimes should not be understated,” the judge said in handing
down the maximum sentence. “He embarked on a campaign of setting arson
fires that is remarkable in the number of fires he set and in the expert
way he set them.”
As he had throughout his five-week trial, the balding
grandfather and Air Force veteran showed no emotion during the brief
hearing. Orr also declined to address the court.
Orr’s silence prompted outrage from the brother of a
victim, who called Orr “a coward” who “showed no remorse throughout his trial.”
Relatives of the victims criticized the judge’s
decision to prohibit them from looking at or directly addressing Orr
during the hearing.
“He’s a shell. He fails to
be human,” Luis Cetina said of Orr. “He’s sentenced our families to a
life of pain and grief.”
Last June, Orr, 49, was found guilty of more than two
dozen crimes, including the Oct. 10, 1984, fire that killed Jimmy
Cetina, 17, fellow employee Carolyn Kraus, 26, Ada Deal, 50, and her 2-year-old grandson,
Orr also was convicted of 20 arsons, including a
devastating firestorm that damaged or destroyed 67 homes in the College
Hills section of Glendale in June 1990.
Jurors later deadlocked 8-4 in favor of sentencing
Orr to death. State law requires a death penalty recommendation to be unanimous.
“We felt that we had about
as good a jury as we were likely to get in that first jury,” said Deputy
Dist. Atty. Michael Cabral, who decided last month not to try Orr again
on the death penalty issue. “We felt that the likelihood of getting a
different verdict from a new jury was very slim.”
During the five-week trial, Cabral and Deputy Dist.
Atty. Sandra Flannery presented evidence that Orr engaged in a
distinctive pattern of criminal behavior, setting fires during daytime
hours in polyfoam materials in the back of occupied businesses, using
a “signature” time-delay device consisting of a cigarette, matches, a
rubber band and a piece of legal paper.
To back up their case, prosecutors presented “Points
of Origin,” a manuscript Orr wrote detailing the activities of a
firefighter-turned-arsonist who uses his knowledge to outwit authorities.
The novel’s protagonist, named Aaron, uses a slow-burning incendiary
device to set fire to a Pasadena hardware store called “Cal’s,” in which
several employees die, as well as a woman and her young grandson.
“Aaron wanted the Cal’s
fire to be called arson. He loved the inadvertent attention he derived
from the newspaper coverage and hated it when he wasn’t properly ‘recognized,’
” Orr wrote in the manuscript. “The deaths were blotted out of his mind.
It wasn’t his fault. Just stupid people acting as stupid people do.”
Defense attorneys Edward Rucker and Peter Giannini
argued that the South Pasadena blaze was an electrical fire and
dismissed Orr’s manuscript as “pure fiction,” comparing it to the 1991
movie “Backdraft,” which also was written by a firefighter.
Giannini cited testimony by a UCLA
forensic psychiatrist, who said Orr was driven to torch buildings by a
compulsion he was powerless to control. “He had no choice in the matter,”
the lawyer said.
Orr, who has been in custody since 1991 and is
serving a 30-year federal prison sentence, was convicted in 1992 of
federal crimes stemming from a series of hardware store blazes in the
San Joaquin Valley around the time of a state arson investigators
convention in Fresno.
The next year he pleaded guilty to setting three
additional blazes, including a 1990 fire at a Builders Emporium in North
Hollywood and two others near Atascadero in 1989.
Prosecutors said he will be transferred from federal
to state prison in 2002. He was ordered to pay $90,000 in restitution.
“The lesson that this case
teaches us is that no one should be above suspicion when it comes to
criminal activity,” Cabral said. “There were many instances where other
investigators felt that something wasn’t right, and for a long period of
time overlooked it because of his position in fire service.”
Trial Starts for Former Firefighter Accused in
Blaze That Left 4 Dead
By Andrew Blankstein -
Los Angeles Times
May 7, 1998
The murder trial of John Leonard Orr, a former
Glendale fire captain turned arsonist, got underway Wednesday with
defense lawyers arguing that faulty wiring–not arson–was to blame for a
fire that killed four people in South Pasadena.
Although acknowledging to jurors that Orr, a former arson
investigator, had pleaded guilty in 1992 to federal charges stemming from
a series of arson fires in Bakersfield, attorney Ed Rucker said the blaze
at Ole’s Home Center in 1984 was not Orr’s handiwork. The fire began in
the store’s ceiling as a smoldering electrical fire before exploding into
the aisles below, he said.
“He has admitted he set
fires,” said Rucker, referring to San Joaquin Valley blazes Orr set
while attending a 1987 arson investigator’s convention in Fresno.
However, Rucker said, “Mr. Orr is not responsible for this [Ole’s] fire…
. Nobody is responsible for this fire, because it’s not an arson.”
In the state trial–which was delayed by the federal
case and civil actions–Orr is accused of more than two dozen felonies.
These include four murder counts for allegedly causing the deaths of Ada
Deal, 50, her 2-year-old grandson, Matthew Troidl, and hardware store
employees Carolyn Kraus, 26, and Jimmy Cetina, 17.
A key prosecution exhibit is the manuscript of a
novel Orr wrote about a firefighter turned arsonist, in which the
protagonist sets a hardware store ablaze, killing a woman and her grandson.
Deputy Dist. Atty. Sandra Flannery told the jurors
that Orr ignited the Ole’s fire, as well as others at a nearby Vons and Albertson’s
grocery stores to create a diversion.
Prosecutors said Orr arrived at the scene with a 35mm
camera, telling a fire official he was “just passing by,” Flannery said.
“John Orr claimed the Ole’s
fire was arson … that he knew the identity of the arsonist,” Flannery
said. “He was speaking from first-hand knowledge.”
Deputy Dist. Atty. Michael Cabral briefly summarized
three other fires Orr is accused of setting, including a Nov. 22, 1991,
blaze in the Warner Bros. back lot in Burbank–which destroyed the set of
the television show “The Waltons”–and the 1991
brush fire that engulfed 67 homes in the College Hills area of Glendale.
Cabral said Orr displayed a knowledge that went
beyond his 17 years of experience with the Glendale Fire Department.
Orr theorized that an arsonist ignited the Glendale
brush fire with a lighter, Cabral said, but “no one in any position of
authority saw the device” that Orr said he found at the point of origin.
Cabral also told jurors he would introduce numerous
videotapes and audiotapes of fires at which Orr was present, including
video Orr filmed of a Glendale blaze before firefighters arrived.
The prosecutors’ presentation made no mention of the
most dramatic evidence, Orr’s unpublished manuscript for a novel called
“Points of Origin,” which tells the story of a firefighter-arsonist as
he sets fires across California.
Nevertheless, defense attorney Peter Giannini
launched a preemptive strike.
“There’s no question John
Orr had access to information contained in the book. He was the
investigator,” Giannini said.
“The fact the information
is in the book does not mean he set [the fires].” A firefighter also
wrote the story that became the movie “Backdraft,”
the lawyer said, but that “doesn’t mean he set the fires any more than
John Orr would.”
Giannini also attacked prosecutors’ contention that
Orr used a signature device to set the fires, consisting of a cigarette,
matches and a rubber band.
particularly unusual about it,” he said.
Such a device was not found at any of the fires
specified in the charges, Giannini said. “Not a single one.”
Manuscript Adds Fuel to the Fire in Murder Case
By Andrew Blankstein -
Los Angeles Times
April 27, 1998
The manuscript reads like pulp fiction or a
For nearly a decade, a serial arsonist sets brush
fires and torches businesses across California. Authorities believe the
culprit is a firefighter but can’t pin an individual to the crimes. In
the midst of the spree, the elusive arsonist sets a Pasadena hardware
store ablaze. People perish in 800-degree flames, including a woman and
her young grandson.
This week, seven years after scripting this elaborate
tale, nationally recognized arson expert and former Glendale Fire Capt.
John Leonard Orr, 49, is scheduled to go on trial in a downtown Los
Angeles Superior Court, accused of virtually the same crimes he detailed
in his work of supposed fiction.
Orr, in custody since 1991 and already serving 30
years in federal prison for arson, has pleaded not guilty to more than
two dozen state charges of arson and murder.
Four first-degree murder counts stem from a 1984
blaze at Ole’s Home Center on Fair Oaks Avenue in South Pasadena that
killed 50-year-old Ada Deal, her grandson, Matthew Troidl, 2, and two
employees, Carolyn Kraus, 26, and Jimmy Cetina, 17.
If convicted in the killings, which bear a striking
resemblance to Chapter 6 of his novel, “Points of Origin,” Orr could be
sentenced to death.
Orr, a 17-year veteran of the Glendale Fire
Department, also faces 21 counts of arson in connection with fires in
Burbank, Glendale and La Canada Flintridge in 1990-91.
Included in those charges are a Nov. 22, 1991, blaze
in the Warner Bros. Studios back lot in Burbank, which destroyed the set of
long-running 1970s television series “The Waltons,” and a June 27, 1990,
brush fire that destroyed 67 homes in the College Hills area of Glendale.
The trial–delayed seven years by the federal trial,
pretrial actions and civil suits by the families of fire victims–is
expected to last three months.
The 350-page manuscript for Orr’s novel was seized
by federal investigators when Orr was arrested. Deputy Dist. Atty.
Michael Cabral said last week that the unsold novel will be only a small
part of the prosecution’s evidence, which will include 40 videotapes and 70
audiotapes made at dozens of fires, communications with law enforcement
authorities, queries to literary agents and testimony from more than 100 witnesses.
Over vigorous defense objections, Superior Court
Judge Robert J. Perry also ruled the state can
use evidence and witnesses presented by federal prosecutors in two
Defense attorney Peter Giannini attacked the state’s
case by asserting in court documents that there was no direct evidence
to connect his client to the deadly South Pasadena fire.
“They have taken isolated
actions by a man who had a distinguished career as an arson investigator
and twisted them in an attempt to make them look like he started the
Ole’s fire,” Giannini said last week. “There’s
no physical evidence and no eyewitness evidence to put Orr at the scene
of [the] Ole’s [fire] until he was supposed to be there as an
investigator for the regional arson strike force team.”
Giannini fought the prosecution’s effort to introduce
evidence from the federal trial into the state case, court documents show.
“No combination of the
proffered uncharged fires establishes any kind of unusual pattern,”
He also disputed the contention of federal
prosecutors that Orr used a device to set off fires, a simple time-delay
fuse made from a rubber band, cigarette and matches.
Giannini declined to discuss specific incidents or
elaborate on his client’s federal arson pleas and convictions and their
role in the state trial. But it appeared from pretrial discovery motions
that some of the most damaging evidence will come from Orr’s own words.
In the manuscript, Orr details the activities of a
serial arsonist named Aaron who “favors large brush fires but graduates
to burning businesses.”
The manuscript describes a fire set at a Pasadena
hardware store called Cal’s in which Aaron puts a slow-burning
incendiary device–made from a cigarette and a rubber band–into
polyurethane foam cushions, setting off a fire that traps several
employees and two characters, Madeline Paulson and her 3-year-old
“The last thing she heard
was a tremendous roar as the fire burned through the roof and vented to
the outside,” reads a passage from the text. “The smoke momentarily
lifted but was then replaced by solid fire as the entire contents of the
annex exploded into flames. Their last breaths were of 800-degree heat
that seared their throats closed … ”
Pitching his novel in a 1991 letter to the
L. Harry Lee Literary Agency, Orr called it “a
fact-based work that follows the pattern of an actual arsonist that has
been setting serial fires in California over the past eight years. He
has not been identified or apprehended, and probably will not be in the
“As in the real case,” he
continues, “the arsonist in my novel is a firefighter.”
It is those words and others that prosecutors contend
were the product of more than just an active imagination. Collectively,
the manuscript and the letter “tends to prove Orr’s identification as
the arsonist” as well as clarifying a motive, prosecutors said.
Prosecutors also argued the pattern of arson fires
described in the novel “bears striking similarities to the pattern of
charged and uncharged fires alleged in this case. These similarities reflect
knowledge beyond that which Orr could have reasonably obtained as an
Evidence will be admitted in the state trial from 13
other blazes. If Orr is convicted and the trial goes into a penalty
phase, Cabral said, as many as 40 more fires will be considered.
Orr was arrested in December 1991 after federal investigators,
suspecting his link to fires, began to track his movements. A task force
of federal Bureau of Alcohol, Tobacco and Firearms agents and local law
enforcement officers noted that fires had started near the sites of
conferences Orr had attended.
“This guy was sought after
for conferences and arson training across the country,” said an official
familiar with the investigation who asked not to be named. “His
presentations were educational and he was knowledgeable. Perhaps too knowledgeable.”
Evidence shows he volunteered to assist in the
investigation of those fires, the official said.
In 1992, Orr was convicted on three federal counts of
arson for setting a series of hardware store blazes in the San Joaquin
Valley about the time of a state arson investigators convention in
Fresno. The following year he pleaded guilty to setting fires at a
Builders Emporium in North Hollywood in 1990 and a hardware store and
home improvement center near Atascadero in 1989.
Since then, the Los Angeles County district
attorney’s office, with help from local firefighting agencies, reviewed
records of more than 1,100 fires, Cabral said.
By the time of his arrest, Orr had 21 years’
experience as a firefighter in Glendale and elsewhere. He commanded an eight-man
Arson/Explosives Investigation Unit and claimed to have personally
trained more than 1,200 firefighters and investigators.
In one of his letters to a literary agent, Orr said
an arsonist “not only stays close by, but sometimes even participates in
the discovery and extinguishment of ‘their’ fire.”
That’s a good description of one particular type of
arsonist, said Dian Williams, an arson profiler and president of the
nonprofit Center for Arson Research Inc. in Lafayette Hill, Pa.
“There are multiple reasons
for setting fires, and there are seven recognizable subtypes, including
delinquents, revenge setters and fire bombers, accidental or curiosity
seekers, deliberate fire setters, fraud arsonists, psychotics and thrill
seekers,” Williams said.
Orr’s description of his central character fits into the
thrill-seeking category, Williams said. “It’s the fire setters who return
to the scene, often make videotapes of their work, frequently collect
souvenirs and are drawn to the fire service.
“Perhaps most importantly,
it’s a game [for them] in which they are proving that they are smarter
than the investigator,” she said.
In his manuscript, Orr wrote: “The investigating
agency termed the fire arson, but no correlation was made to the Cal’s
fire. Aaron wanted the Cal’s fire to be called arson. He loved the
inadvertent attention he derived from the newspaper coverage and hated
it when he wasn’t properly ‘recognized.’ ”
That describes a typical thrill-seeking arsonist,
Williams said. “They want acknowledgment of how clever they were. They
truly feel smarter than everyone else. They don’t think they are going
to get caught.”
If an investigator volunteered to investigate his own
fires, she said, “that’s the arrogance of it.”
977 F.2d 593
United States of America, Plaintiff-appellant,
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 21, 1992.
Decided Oct. 14, 1992
Before WILLIAM A. NORRIS, REINHARDT and TROTT,
We review an interlocutory appeal
from the district court's order to excluded evidence of a manuscript
authored by John Orr.
Orr was the chief arson investigator in the
Glendale Fire Department who was charged with five counts of arson and
three counts of attempted arson. His manuscript is about a Los Angeles
firefighter who sets serial arson fires. The arsonist's modus operandi
in the manuscript is strikingly similar to the modus operandi of the
Orr filed a
motion in limine to exclude the manuscript and related letters to
Orr's literary agent as hearsay. The district
court granted the motion to exclude the manuscript and any references
to it, not because it was hearsay, but because the district court
believed the prejudicial effect of the manuscript was too great when
examined under of Fed.R.Evid. 403.
The district court found the
manuscript was prejudicial because "the points of origin and methods
of starting the arson fires described in the manuscript do not appear
to the Court to be so unique as to justify the conclusion that
defendant must have had first-hand knowledge of the facts and
circumstances underlying the arson fires charged against him." In the
order, the district court stated that it found the "claimed
similarities between the events in the manuscript and the actual
events underlying the crimes charged in the indictment ... are not ...
sufficiently probative to substantially outweigh the tremendous
prejudice to defendant."
We review that order, and
respectfully hold that the district court abused its discretion in
excluding this evidence. United States v. Joetzki, 952 F.2d 1091, 1094
(9th Cir.1991) ("[w]e review decisions under Rule 403 for abuse of
The manuscript and letters are
highly probative of modus operandi and thus the identity of the
arsonist. The following list describes only some of the many key
similarities that exist between the protagonist in the manuscript and
the actual arsonist:
1. Both are firefighters.
3. Both use a delay incendiary device designed to
fully ignite the fire approximately ten to fifteen minutes after the
device is in place.
4. In one draft of the manuscript it describes a
match attached to a cigarette and placed inside a paper bag--similar
to the actual facts: matches attached to a cigarette and placed inside
yellow lined paper.
5. Both start fires in retail stores located in Los
Angeles during business hours and both place the incendiary device in
combustible materials located in the store.
6. Both start fires in the drapery section of a Los
Angeles fabric store.
7. Both start fires in a display of styrofoam
8. Both start fires in hardware stores.
9. Both start fires at several retail stores in
close proximity to one another within a short time span on the same
10 Both start fires in the same locations while
both the character and actual arsonist were traveling to or from arson
investigator's conferences in Fresno.
To properly decide that evidence is
overly prejudicial, a court must determine whether "the facts arouse
the jury's feelings for one side without regard to the probative value
of the evidence, or in other words, if the jury is basing its decision
on something other than the established facts and legal propositions
in the case." United States v. Bowen, 857 F.2d 1337, 1341 (9th
Cir.1988); see also United States v. Skillman, 922 F.2d 1370, 1374
(9th Cir.1990) (Fed.R.Evid. 403 evidence is that which "appeals to the
jury's sympathies, arouses its sense of horror, provokes its instinct
to punish, or otherwise may cause a jury to base its decision on
something other than the established propositions in the case" (quotations
omitted)), cert. dismissed, 112 S.Ct. 353 (1991).
In the instant case, the
descriptions in the manuscript only relate to "the established facts
and legal propositions in the case." Bowen, 857 F.2d at 1341. We are
not dealing with a tape where the jury would have to "ignore the
sounds of innocent infants crying (and presumably dying) in the
background." United States v. Layton, 767 F.2d 549, 556 (9th
Cir.1985). Clearly Layton was a case where the crying infants would
have had a distracting emotional impact on the jury and could prevent
the jury from focusing on the relevant facts and legal propositions.
The evidence that is the subject of this case has no collateral
aspects capable of generating prejudice against the defendant. The
disputed evidence is directly relevant to the issue of the identity of
the arsonist responsible for the fires at issue, and it does not
introduce any extraneous considerations into the case that might
inappropriately lead a jury astray. In this context, it was a mistake
for the district court to view the highly probative aspect of this
evidence as "prejudicial."
Therefore, "[h]aving carefully
evaluated all of these factors, we hold that the evidence ... was
properly admissible because it was so highly relevant to proof of
modus operandi and identity." United States v. Bailleaux, 685 F.2d
1105, 1112 (9th Cir.1982).
REINHARDT, Circuit Judge, dissenting:
Because I have serious doubts about
the wisdom and necessity of reaching the merits, as well as about the
majority's reasoning on the merits, I dissent. I would remand to the
district court for reconsideration of its ruling in light of
Initially, I note that the majority
reaches its holding of abuse of discretion without fully considering
the district court's reasons for exclusion. The district court
apparently had two concerns, one the majority ignores and the other it
concludes is an inappropriate factor under Rule 403. Because I believe
both are legitimate concerns, I would not hold that the district court
abused its discretion.
One of the district court's concerns
was that the jury might give undue weight to Orr's
manuscript by failing adequately to consider possible innocent
explanations for the similarities between the events described in the
manuscript and the crimes charged. Specifically, the district court
concluded that the jury might tend too easily to dismiss
Orr's alternative explanation for the
descriptions in the manuscript--his access to arson files, including
those for cases substantially similar to those in his manuscript. In
short, the district court was concerned about possible jury over-reliance
on the manuscript.
The majority apparently concludes
that this consideration cannot constitute "unfair prejudice" under
Rule 403 because it is not unrelated to "established facts and legal
propositions." United States v. Bowen, 857 F.2d 1337, 1341 (9th
Cir.1988). The majority also notes that this case is not an example of
dying babies, but that self-evident proposition does nothing to
demonstrate how the cryptic generality from Bowen applies to
Orr's manuscript. In my view, interpreting
Bowen, as the majority does, to require that unfair prejudice under
Rule 403 flow solely from "collateral aspects" or "extraneous
considerations" ignores both the Federal Rules and our own past
First, the Federal Rules of Evidence
do not require that "unfair prejudice" result from a collateral source.
To the contrary, the inadmissibility of propensity evidence under Rule
404(a) is in part based on the very type of over-reliance concern
expressed by the district court here--the apprehension that the jury
will give undue weight to the inference intended by the offeror and
will ignore any rebuttal to the inference. Long before the Federal
Rules of Evidence were adopted, the Supreme Court explained that
character evidence has been traditionally rejected "not ... because
character is irrelevant; on the contrary, it is said to weigh too much
with the jury and to so overpersuade them as to prejudge one."
Michelson v. United States, 335 U.S. 469, 475-76 (1948).
In addition, our prior rulings on
the inadmissibility of the results of polygraph examinations reflect
the same concerns expressed by the district court here, and
demonstrate that, under Rule 403, the trial judge may legitimately
consider the possibility of jury over-reliance. In excluding polygraph
evidence, we noted that the "view of the polygraph as an absolute
indicator of truth creates an overwhelming potential for prejudice."
Brown v. Darcy, 783 F.2d 1389, 1396 (9th Cir.1986); see also United
States v. Falsia, 724 F.2d 1339, 1342 (9th Cir.1983) (polygraph's "misleading
appearance of accuracy" is factor to be weighed under Rule 403). Thus,
we were concerned that the jury might rely too heavily upon polygraph
results as an indicator of the truth and give insufficient attention
to alternative, innocent explanations for passing or failing a
polygraph examination. This concern is not "collateral" or "extraneous,"
but directly related to the probativeness of the polygraph. Taking
into account our polygraph cases, I find it difficult to say that the
district court abused its discretion by applying similar concerns
about jury over-reliance to Orr's manuscript.
Moreover, apart from possible jury
over-reliance, the district court had a related concern, which it
termed "bootstrapping," that the majority entirely fails to address.
Orr's manuscript not only describes fires
similar to those charged in this case, but also describes fires in
Bakersfield, Fresno, and Tulare; Orr was
charged with setting the San Joaquin Valley fires, but those charges
are not a part of this action. The district court concluded that there
was an insufficient basis to introduce the Fresno and Tulare fires as
other acts of Orr under Rule 404(b). Having
so concluded, the district court determined that admitting
Orr's manuscript with its descriptions of
these fires would constitute unfair prejudice. The district court was
properly concerned that the government could evade the court's adverse
404(b) ruling by introducing the manuscript and inviting the jury to
infer that each fire described was based upon an actual arson
committed by Orr.
Even under the majority's dubious "collateral
aspect" rule, the district court's "bootstrapping" concern was proper.
Once the district court determined that the Tulare and Fresno fires
were inadmissible under Rule 404(b), their description in
Orr's manuscript were no longer related to "established
facts and legal propositions"; they had become "collateral." The
district court concluded that these "collateral aspects" created a
significant danger of unfair prejudice, and excluded the manuscript.
Under the majority's own reasoning, this conclusion would seem
appropriate, yet the majority finds an abuse of discretion without
even addressing the district court's "bootstrapping" concern.
Because I believe the majority's
approach to Rule 403 is both unprecedented and erroneous, and because
I believe the majority violated even its own rule by ignoring a
significant rationale offered by the district court, I would not find
an abuse of discretion here. My unwillingness to join the majority is
further supported by the material change in circumstances that has
occurred since the district court issued its ruling.
Orr has now been found guilty of setting fires in the San
Joaquin Valley. That verdict might well ameliorate or eliminate the
district court's "bootstrapping" concern. It also might affect the
district court's view of the over-reliance issue. Alternatively, of
course, the district court might conclude that the possibility of over-reliance
remains a sufficient reason to exclude the manuscript. In either event,
the district court should be allowed to reconsider its ruling in light
of the changed circumstances.
While permitting the government to
take pre-trial appeals from evidentiary rulings may have merit when
the ruling is final and irrevocable, there is no justification for
such an extraordinary procedure when events demonstrate that the judge
might change his ruling prior to trial. Here, the changed
circumstances provide just such a case. Thus, I strongly disagree with
my colleagues' conclusion that we have an obligation to reach the
I would order a limited remand to
permit the district court to address anew the question of the
admissibility of Orr's manuscript at trial.
The story of John Orr
has been chronicled by bestselling true crime author Joseph Wambaugh
in a book entitled Fire Lover.