Defense Believes Case in Laguna Fire Will Fall : Arson: It won’t send investigators to Mexico to verify reports that suspect was in prison there at time of blaze.

Confident that charges accusing Jose Soto Martinez of setting the Laguna Beach fire will not stand up in court, the Orange County public defender’s office said Tuesday that it wouldn’t bother sending its own investigators to a Mexican prison where Martinez was reportedly held at the time of the 1993 firestorm.

Prosecutors declined to discuss the case in any detail, saying only that it was still under investigation. But court-appointed defense attorneys representing the man accused of setting the most destructive fire in the county’s history said they are certain that the arson charge against their client cannot be proved because he has an ironclad alibi.

Ever since Mexican prison officials backed the contention of Martinez’s family that he was 1,200 miles away in a Mazatlan prison when the fires occurred last October, officials from the district attorney’s office have slowly backed off pronouncements that he set the fire that damaged or destroyed 441 homes and caused $528 million in damage.

Last Friday, Dist. Atty. Michael R. Capizzi called a news conference to announce that Martinez “willfully and maliciously” set the blaze. But by Monday, Capizzi’s chief assistant, Maurice Evans, said that in light of the new information, “perhaps Mr. Martinez did not set the fire and was in prison in Mexico.”

With the possibility that prosecutors may have to drop the most serious of four arson charges against Martinez--the other three were for small fires in Fullerton--new questions have surfaced about the entire case against Martinez.

In a written response to a query from The Times, Capizzi stated that the case had been fully investigated by his office for two weeks, that all prosecution guidelines were properly followed, and that he was satisfied with the way all law enforcement agencies had handled the matter.

But others were critical of the filing.

For example, Deputy Public Defender Jim Egar said that even after Martinez was granted a court-appointed attorney, law enforcement officers videotaped seven sessions at which Martinez was quizzed about his knowledge of arson incidents without his attorney present--despite requests to the contrary.

Officers “recklessly and extensively” interrogated Martinez, Egar said, and violated his constitutional rights to have an attorney present and not to make incriminating statements against himself.

Prosecutors said that a public defender was appointed for Martinez only for the Fullerton fires, and that the subsequent interviews concerned only the Laguna fire, before a court-appointed attorney was chosen for that case.

But court documents show that his court-appointed attorneys formally put the district attorney’s office on notice more than two weeks ago in the Fullerton case that Martinez was invoking his right to have his attorney present whenever he was questioned, and to remain silent “as to this case and any other matter whether or not a complaint has been filed therein. . . . “

Public Defender Ronald Y. Butler said Tuesday that he thinks the district attorney’s office may have rushed filing the arson charge against Martinez, without making an effort to contact the suspect’s family for information that might exonerate him.

“I think they’re being cautious now, whereas before they didn’t exercise a great deal of caution,” Butler said. “I guess they are trying to figure out how to deal with this in the media.”

Butler also criticized the district attorney for interviewing Martinez on the Laguna fire even after a public defender had been appointed to the case.

“Let’s assume that he was not in the prison in Mexico; it looks like there are some very serious questions of admissibility of any confession or investigation,” Butler said. “It smells like they have serious legal problems. . . . If (Martinez’s) statements are ruled invalid, then their case goes away on that as well.”

Even Fullerton Police Chief Patrick McKinley, who is still convinced that Martinez is the man who set the Laguna fire, said that if defense attorneys “can show or put doubt in the jury’s mind, it could be a problem. We have to take care of that issue one way or the other.”

McKinley defended both his own department’s handling of the case and that of the district attorney.

“Our detectives did everything right and (the district attorney) did everything right,” McKinley said. “We both did everything to assure that things were done appropriately and I’m very proud of what we did.”

Fullerton police officers arrested Martinez Sept. 16, the day that three fires were set in and near an apartment complex.

Although his mother tried to file a missing persons report with Fullerton police about her son’s disappearance Sept. 17, and finally succeeded two days later, police say they never made the connection between the man they had in custody and the man reported missing.

“This guy is an adult,” McKinley said. “He’s 26 years old. He tells us nothing that would indicate he’s got a family. He’s got all the freedom in the world to use the telephone. We certainly didn’t deprive him.”

Dan Runnestrand, chief investigator for the Orange County Fire Department, said Martinez convinced him that he set the Laguna fires, the Fullerton fires and the Aug. 5 Green River brush fire in Riverside County.

“I tell you, this wasn’t a leap of judgment on our part or a leap of us wanting him to admit to these fires so badly that we overlooked inconsistencies or misinformation,” Runnestrand said. “I was very skeptical from the start, but the fact that he could have guessed where these fires were started is highly unlikely.”

Deputy Public Defender Frank Ospino, who is representing Martinez, said he is confident his client will be exonerated of the Laguna Beach arson charge.

Ospino said, “I haven’t gotten any indication directly from the D.A., but we’re hopeful that the charges are going be dropped,” adding that the action could come as early as this morning.

Although one of his colleagues in the South County public defender’s office announced Monday that the office was sending investigators to gather the same information that district attorney investigators had already collected from the prison, Ospino said there had been a change of mind.

“We think that there is enough (information) right now that we don’t need to duplicate” what the district attorney has already done, Ospino added.

A pretrial hearing on the Martinez case is scheduled for this morning at 8:30 in Division 4 at Municipal Court in Laguna Niguel.

Ospino said he still hasn’t received police reports from the district attorney’s office regarding the Laguna Beach arson investigation, and could not comment on why prosecutors felt they had enough evidence to file charges against Martinez.

Meanwhile, Martinez’s family is anxiously awaiting word on what will happen to the young man, whose legal name is Jaime Saille Higuera.

Malzquias Campos, Martinez’s stepfather, said prosecutors “are not going to give us any more information. We are left on the outside.” Campos said law enforcement officials “are determined to prove” that his stepson started the Laguna fire. “We are sad, tired, because of everything that has happened.”

Felipe Soria Ayusa, the consul for the Mexican Consulate in Santa Ana, said his government is working to get the Laguna Beach arson charge against Martinez dropped.

“Our position is very clear,” he said. “We are approaching (Martinez’s) family to give them legal protection and get the documents they need to prove that their son was in jail and prove that he is innocent of these charges.”

Some legal professionals, however, said they couldn’t fault the district attorney for being zealous in an arson prosecution.

“It’s one of the worst crimes in the world. A fire has no conscience. It’s not like a gun that can be pointed. Fires can go anywhere,” said a Los Angeles County deputy district attorney who helped establish statewide charging standards for the California District Attorney Assn.

Assistant Dist. Atty. Wallace J. Wade said this week that it’s easy for anyone to criticize prosecutors for deciding to charge Martinez, now that the alibi is known.

“We very seldom have somebody come forward with an alibi in advance of the charges,” Wade said. “Many times we don’t find out until the trial. Anticipating an alibi is almost impossible. We all now have the benefit of 20/20 hindsight that . . . this fellow may have an alibi.”