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John Leonard ORR

 
 
 
 
 

 

 

 

 


A.K.A.: "The Pillow Pyro"
 
Classification: Mass murderer
Characteristics: Former fire captain and arson investigator - Convicted serial arsonist
Number of victims: 4
Date of murders: October 10, 1984
Date of arrest: December 4, 1991
Date of birth: April 26, 1949
Victims profile: Ada Deal, 50, her 2-year-old grandson, Matthew Troidl, and hardware store employees Carolyn Kraus, 26, and Jimmy Cetina, 17
Method of murder: Fire
Location: South Pasadena, California, USA
Status: Sentenced to life plus 20 years in prison without the possibility of parole on September 17, 1998
 
 
 
 
 

Department of Homeland Security Special Report

 

"firefighter arson"

 
 
 
 
 
 

John Leonard Orr (born April 26, 1949) is a convicted serial arsonist who was once a fire captain and arson investigator for the Glendale Fire Department in Southern California. Orr had originally wanted to be a police officer, but had failed his entrance exam; instead he became a dedicated fire investigator and career fire officer. Throughout the 1980s and 1990s Los Angeles was plagued by a series of fires that cost millions of dollars in damages and claimed four lives. John Orr was found to be the cause of most of those fires. During his arson spree, Orr was given the nickname the Pillow Pyro by arson investigators.

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 unattended.

1984 South Pasadena fire

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.

Investigation

In January 1987, a convention for arson investigators from California was held in the city of Fresno. During and after the convention, several suspicious fires were set in the area and south of Fresno in Bakersfield. This, combined with the recovery of a single unmatched fingerprint left on a piece of notebook paper as part of a time-delay incendiary device, led Captain Marvin G. Casey of the Bakersfield Fire Department (BFD) to suspect that an arson investigator from the Los Angeles area was responsible for these arsons.

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.

Orr then became a serious arson suspect and the subject of investigation and surveillance for several months. Orr was alerted to this surveillance effort on May 3, 1991, when he discovered and removed a tracking device that belonged to the Bureau of Alcohol, Tobacco, and Firearms (ATF) hidden under the bumper of the vehicle he was driving. However, Orr was apparently unaware of the fact that a Teletrac tracking device was later installed behind his dashboard when he brought his city vehicle for service on November 22, 1991. Meanwhile, a federal grand jury handed down an indictment, and shortly thereafter Orr was present at the scene of a suspicious fire, so a decision was made to end the surveillance, obtain an arrest warrant, and effect an arrest. Orr was arrested on December 4, 1991.

Trial

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.

After the trial, and legacy

Orr is currently serving time in California state prison to serve the remainder of his life sentence.

Some arson investigators and an FBI criminal profiler have deemed Orr to be possibly one of the worst American serial arsonists of the 20th century. ATF agent Mike Matassa believes that Orr set nearly 2,000 fires between 1984 and 1991. Furthermore, arson investigators cited that after Orr was arrested, the number of brush fires in the nearby foothill areas decreased by over ninety percent. However, Orr continues to maintain his innocence, and wrote an autobiography stating that he was innocent and betrayed by the legal system.

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 stated:

"The character of Aaron Styles was a composite of arsonists I arrested."

Wikipedia.org

 
 

Ex-Fire Investigator Gets Life Term in Fatal Arson

By Andrew Blankstein - Los Angeles Times

September 18, 1998

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 hardware store.

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, Matthew Troidl.

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.

There’s nothing 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 psychological thriller.

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 previous trials.

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,” Giannini argued.

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 grandson, Matthew.

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 near future.”

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 arson investigator.”

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,
v.
John
Leonard Orr, Defendant-appellee

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 21, 1992.
Decided Oct. 14, 1992

Before WILLIAM A. NORRIS, REINHARDT and TROTT, Circuit Judges.

MEMORANDUM*

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 actual arsonist.

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 discretion).

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.

2. Both are non-smokers.

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 products.

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 day.

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).

REVERSED.

*****

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 subsequent developments.

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 precedent.

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 merits now.

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.

 

 

 
 
 
 
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