Few arsonists are charged; convictions are even rarer

Riverside County authorities did something very unusual Thursday: They charged a man with arson.

Nationally, only about 10% of arson fires yield charges, in part because there is hardly ever an eyewitness, and physical evidence is often destroyed in the fire, legal experts and investigators said.

But although it is difficult to prove arson, the leap to murder is relatively easy, if prosecutors can show that a fatal fire was willfully and maliciously set, rather than negligently, as in a campfire flaring out of control.

So far, Riverside County authorities have not stated publicly what proof they have against Raymond Lee Oyler, who is accused of 11 counts of arson, five counts of murder and 10 counts of possessing a flammable substance. Five firefighters, ages 20 to 43, died as a result of the Esperanza fire, which Oyler allegedly ignited during strong Santa Ana winds.

Nonetheless, Dist. Atty.-elect Rod Pacheco said Thursday that the evidence was “overwhelming” and that he might seek the death penalty.

Building a case against Oyler will require meticulous detective work, said Jean Marie Daly, a veteran arson prosecutor in the Los Angeles County district attorney’s office.

Investigators have to establish the cause and origin of the fire.

“Mostly, they are circumstantial cases. Maybe you have pieces of evidence, fingerprints on something found near the scene or someone seeing the defendant before or after the fire starts,” Daly said.

Finding “the point of origin is critical,” said Jim Whitaker, executive director of the International Assn. of Arson Investigators.

The task clearly is more difficult with a wild-land fire than a structure fire, where you have a confined space, Whitaker said. But in the end it comes down to the same critical point: Can investigators establish that “the fire was intentionally set by human hands?”

Daly said fire investigators also look for a motive. Arsonist profiles range from those seeking attention to the classic pyromaniac. In addition, Daly said there are people who start fires for “pure sexual gratification.” In a case like the Esperanza fire, Daly said sophisticated investigators would check the suspect’s computer for evidence that he was checking wind patterns, temperature levels and humidity readings. A practiced arsonist, Daly said, knows to set a fire “at the lowest point of humidity and when the wind is most likely to carry it.”

Although common wisdom is that fire destroys physical evidence, that is only partially true, said Chris Childs, the elected prosecutor in Huntington, W.Va., who secured a murder conviction stemming from an arson fire five years ago.

“Fire creates evidence,” he said. “It behaves in predictable ways. It leaves evidence; it leaves patterns. Trained experts can do amazing things with determining whether someone set a fire.”

Investigators have not had much luck in convicting anyone for the many arson wildfires that have plagued Southern California over the last few decades. The 1993 Malibu fire, which killed three and caused $375 million in damage, and the 1994 Laguna Beach fire, which destroyed 441 homes and left $528 million in damage, went unsolved.

The Los Angeles County district attorney’s office said it did not have enough evidence to prosecute two firefighters who were named as suspects in the Malibu blaze. The Orange County district attorney office at first said that a man had confessed to the Laguna Beach fire but dropped the charges after discovering he was in a Mexican prison at the time.

Los Angeles County prosecutors charged a freelance videographer with setting the 2002 Leona Valley fire so he could sell the footage to television news stations. But they were unable to persuade two juries to return unanimous guilty verdicts on any arson-related charges.

On the other hand, murder is not a hard sell in a fire like the Esperanza, once arson is established, said Loyola Law School professor Laurie Levenson, a former federal prosecutor. Arson is one of the crimes that qualifies under the felony murder doctrine, which holds that anyone engaging in an activity that is likely to cause death can be found responsible even though he did not intend to kill any particular person.

“The commission of a felony replaces the element of malice normally needed to prosecute someone for murder,” Levenson said.

Stanford University law professor Robert Weisberg emphasized that the California arson statute specifically covers forestland as well as structures. “People in California view forest fires as incredible threats to public safety. It would be perfectly plausible for a prosecutor to seek the death penalty” in a case where five firefighters died, Weisberg said.

Los Angeles defense lawyer Peter Giannini, who represented John Orr, the former Glendale firefighter sentenced to life in prison for killing four people in an arson fire, agreed that the menace of wild-land fires is indisputable.

“Most people who are serial arsonists don’t intend to kill people. At the same time, it is unquestionably an inherently dangerous act.” The arsonist “certainly knows firefighters will be fighting fires, and that is dangerous. Firefighters get killed fighting fires. Arsonists know that is a possibility.”

Consequently, he said, once arson is established, it is difficult for a defense lawyer to argue that the death of a firefighter is an unlikely consequence. “That is like shooting a gun into a crowd and saying, ‘I did not intend anyone to get hit.’”

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