California Defense Attorney Plans to Put FD on Trial in Arson Case… NOT SO FAST!!!!

Today’s burning question: can an attorney defending someone charged with aggravated arson for setting a fire that severely injures a firefighter, use the carelessness of the firefighter and the fire department as mitigating factors?

Answer: Attorneys have attempted to use the “perceived” careless of firefighters and fire departments as a defense for various types of aggravated arson charges. These defenses have been largely UNSUCCESSFUL.

The latest case where this defense strategy is being employed is in Fresno, California where 52-year-old Julia Harper is preparing to stand trial for setting the fire that severely injured Fresno Fire Captain Pete Dern. A film of Captain Dern falling through the roof of a well involved garage in March, 2015 has been widely circulated through social media. He sustained severe burns but survived.

Harper’s attorneys initially sought a plead deal in Fresno County Superior Court, but Judge Don Penner rejected the seven-year prison term that was on the table. The attorneys are now claiming they will put the fire department and Captain Dern on trial. More on that story.

Just to keep those threats in perspective, let’s look at a case where attorneys tried the same argument. The case involved the LODD of Seattle firefighter Rob Earhart that occurred on July 12, 1987 at a fire in the Crest Apartment building. Clyde Dale Leech was charged with arson and felony murder for setting the fire.

Leech conceded the arson charge but argued that it was Earhart’s negligence, as well as the carelessness of the Seattle Fire Department, that caused the LODD. Here is what the Supreme Court of Washington said:

• The defendant was charged with first degree felony murder. His main defense was that the negligence of Earhart and the Seattle Fire Department, rather than the arson, was the proximate cause of Earhart’s death.
• A safety inspector for the Washington State Department of Labor and Industries testified that if Earhart had obeyed state safety regulations and gotten a new air bottle when the alarm in his breathing apparatus sounded, his death could have been avoided.
• The apparatus was designed to sound an alarm when less than 5 minutes of oxygen remained in the air bottle.
• The inspector also testified that Earhart was allowed to freelance, or fight the fire without proper supervision.
• The safety inspector opined that if Earhart had been properly supervised, his death might have been avoided.
• It does not seem to us that human error in fighting a fire is an extraordinary occurrence.
• The implication of the defendant’s argument is that an arsonist is entitled to have his fire fought in a perfect, risk-free manner by a fire department; this is not the law.
• We find it sufficient to simply note here that the fire fighter’s alleged negligence in using his breathing apparatus was not the sole cause of his death.
• Since his failure to use the apparatus would not have killed him had the defendant not set the arson fire, the defendant’s conduct in setting the fire was a proximate cause of Earhart’s death.
• The purpose of the felony murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.
• In Washington, “the intent of the legislature to punish those who commit a homicide in the course of a felony under the applicable murder statute is clear.”
• [T]he defendant’s conviction of the crime of first degree felony murder is affirmed.

Here is a link to State v. Leech.