Arson Case a Challenge for Prosecutors : Courts: The lawyer for Fire Capt. John Orr, who faces charges in a series of blazes, has already started poking holes in the federal case.

When People’s Department Store in Highland Park burned down Dec. 10, 1990, Glendale Fire Capt. John L. Orr was there--videotaping a blaze he set, federal prosecutors allege. They plan to use the footage, found in a training tape made by the veteran arson investigator, in their efforts to convict him.

But Orr’s attorney, Douglas McCann, has an explanation for his client’s presence at the fire. Orr, he said, had simply followed the smoke and monitored radio reports to reach the blaze, which was just three miles from his Eagle Rock home--and he videotaped it out of professional curiosity.

At two bail hearings last week, McCann similarly discounted other prosecution evidence.

The arguments from both sides raise an intriguing question: Just how strong is the case against Orr?

A federal grand jury indicted the veteran firefighter Wednesday on charges that he set fires at five retail stores and attempted to commit arson at three others in the Los Angeles area and in Atascadero, in San Luis Obispo County.

When federal agents initially arrested Orr, 42, on a three-count complaint on Dec. 4, their case seemed ironclad. But at the bail hearings, McCann began to pick holes in the evidence, previewing the defense he is likely to present.

And during Friday’s hearing, U.S. District Judge Edward Rafeedie told prosecutors, “The evidence on which you rely is completely circumstantial.”

After the hearing, McCann took an even stronger position.

“The more we look into it, the more we see that this case is a farce,” the defense attorney said.

Over prosecution objections, Rafeedie ruled that Orr could be released on $50,000 bail if he agrees to be under electronically monitored house arrest. Orr and his attorney were attempting to meet the bail requirements this week.

Although federal prosecutors believe their case against Orr is solid, arson is considered one of the most difficult crimes to prove. During 1990, arrests were made in less than 15% of the nation’s arson cases and in less than 12% of those in California. The FBI and the California Department of Justice do not maintain figures that would indicate how many of these arrests led to convictions.

The first challenge, arson investigation experts say, is to establish that a fire was not an accident.

“In auto theft, if the car is gone and you didn’t give someone permission to take it, you know it’s auto theft,” said Tom Fee, president of the 1,000-member California Conference of Arson Investigators. “But in a burned-out building, you have to have the specialized knowledge to go in there and tell what happened.”

Another problem is that a fire often destroys any evidence left by the arsonist, said Fee, who spent 22 years as a Pomona Fire Department investigator before becoming a private consultant to attorneys and insurance companies.

He added that, unlike thieves, arsonists usually take nothing from the building that can later tie them to the blaze.

“In most cases, arson is a planned crime,” Fee said. “It’s not a crime of passion. When you can plan your crime, you can do it with a minimum amount of physical evidence and the minimum exposure to witnesses.”

In serial arson cases, he said, investigators point to an incriminating modus operandi--a common way of carrying out a crime.

The organization that Fee heads represents firefighters, police officers and private experts who investigate suspicious fires. Orr’s membership was suspended after his arrest.

In their 32-page complaint against Orr, federal prosecutors describe a five-year string of similar retail store fires in the Los Angeles area and in Central California. All occurred during business hours, and most were started by a time-delay incendiary device placed among flammable materials, such as draperies and bedding. The Central California fires coincided with Orr’s visits to two arson conferences in that region.

The prosecutors initially charged Orr in only three fires: the People’s store; a Builders Emporium store in North Hollywood on Dec. 14, 1990, and a D & M Yardage store in Lawndale last March 27.

Although federal officials declined to discuss the prosecution’s strategy, the evidence linking Orr to those three blazes appears strongest.

Employees from each of the three stores have identified Orr through photos as a customer before the fire. A Los Angeles police officer also has stated that he saw Orr outside the Lawndale store after the blaze started.

A crude, but commonly used time-delay fire-starting device--consisting of a cigarette, matches and a rubber band--was found at the Builders Emporium. Investigators said the materials needed to make such a device were in Orr’s briefcase when he was arrested.

Although he has not been charged in all of the Central California store fires mentioned in the complaint, investigators say Orr’s fingerprint turned up on an incendiary device linked to a fire at a Bakersfield store.

Federal officials in Los Angeles said they did not file charges in the Bakersfield fire because it is outside their district. Their jurisdiction does, however, include Atascadero.

Perhaps the most dramatic evidence against Orr is “Points of Origin,” his unpublished novel about a serial arsonist who is also a firefighter. In a letter Orr wrote to try to sell the book, he said it was based on the exploits of an authentic serial arsonist who had yet to be caught. The arsonist in the book strikes at retail stores, using a delay incendiary device.

“The serial arsonist (in the book) is the defendant himself,” Assistant U.S. Atty. Stefan Stein argued during last week’s hearings.

But McCann said the federal case was “as fictional as the book. . . . It’s like maybe they worked backwards--that they read the book and then tried to make the case.”

The defense lawyer said he planned to challenge the reliability of the witnesses who placed Orr at the fire scenes in interviews conducted months after the incidents.

McCann also said the fire-starting materials found in Orr’s car and briefcase were merely demonstration devices used by Orr in arson investigation classes that he taught. These items included slow-burning incense sticks that investigators say were similar to ones used to ignite several Glendale area brush fires in recent months. But McCann suggested that Orr simply used the incense to clear unpleasant fire odors from his car.

The defense attorney said he will try to keep a jury from hearing about the 5-year-old Bakersfield fire fingerprint because it stems from a crime that occurred outside the Los Angeles federal court’s jurisdiction. Bakersfield, in Kern County, comes under the Fresno federal court’s purview.

Stein said he will argue that the fingerprint should be admitted because it came from a “signature” device that was used in the fires. The trademark in the fires in which Orr has been charged was the use of three matches and yellow lined paper in these devices, the prosecutor said during the bail hearings.

Fee said that during his two decades with the Pomona Fire Department, county prosecutors lost only one of the arson cases that they decided was strong enough to take to trial. But the arson expert also noted that “fire investigation is not an exact science. It comes down to an opinion given by an expert in the field.

“Opposing opinions sometimes create a problem,” he added.