Judge says Robbers Fire investigator ‘less than accurate’
Bryon Mason had a spring in his step as he walked out of the courtroom Tuesday.
The next step for the Placer County District Attorney’s office appears headed back to the drawing board in the prosecution of the man it alleged started the 2,650-acre Robbers Fire between Foresthill and Colfax in July 2012.
The DA did not file any new charges against Mason on Tuesday, his first court appearance since Judge Colleen Nichols ordered his release March 5 upon ruling there had been insufficient evidence to hold him over for trial on felony arson charges.
Nichols said in her ruling that Cal Fire investigating officer Cpt. Michael Gallagher lacked full credibility as a witness in the preliminary hearing as he gave “less than accurate” testimony and at times was “untruthful and unwilling to acknowledge his mistakes.”
Nichols did say in her ruling that Mason “is clearly held to answer on a lesser included offense of unlawfully causing a fire,” but when she asked if the prosecution would be filing that charge Tuesday, the DA declined to pursue it at that time.
Mason left Placer County Superior Court Dept. 13 in North Auburn with a smile on his face, free to head back home to his wife and two children who he spent more than seven months away from while in jail.
He had been released on March 5, but Tuesday marked the first time he walked away without another court date looming, without having to report to a probation officer, as Nichols removed his supervised release.
“It’s obviously a horrific shock to anybody who has little-to-no experience with the criminal justice system to be in custody for seven months and be away from a couple young sons and his wife,” Auburn-based attorney Thomas Leupp said of Mason, who declined comment. “That’s an obvious hardship on anyone and he’s delighted to be out of custody and be back with his family. We’re waiting to see what happens and what the next steps are.”
As to the original felony charges, Gallagher’s testimony had been key, Nichols said, to determining whether Mason met the condition of “maliciousness” that is required for someone to be guilty of arson.
Mason asked people to leave the Shirttail Creek swimming hole before he threw a firework into it on July 11, 2012, and it exploded in water, but a spark from it may have been what started the Robbers Fire, according to Leupp’s preliminary hearing brief.
The fire raged for 12 days, forcing evacuations of Foresthill and Iowa Hill residents for nearly a week. It burned one remote cabin that had been inhabited one week out of the year, four outbuildings and threatened 170 more homes.
A pair of firefighters had been allegedly injured in the fire, but Nichols also cleared Mason of the great bodily injury enhancement to his charges in March.
Nichols pointed out several problems with Gallagher’s account of the area where the fire started. He testified that the rock wall on the right side of the waterfall had been 15 feet, but Nichols said photos showed that it had been between 25 and 35 feet high.
When the inconsistency had been pointed out, he stuck to his estimate, Nichols said in her ruling.
Asked to circle the 5-foot area where the fire started, Gallagher circled an area with at least a 20-foot radius, which Nichols said “did not help his credibility” and gave her “further pause.”
“It gives me concern we are just trying to prove something regardless of the facts of the case,” she said.
Gallagher also testified the fire started in a “flat, horizontal area,” which Nichols said “was a bit shocking considering the photos … show the area of the fire was anything but flat.”
She said she found it “troubling” that the court had been under the impression after the DA’s questioning of Gallagher that he was “on top of the ledge and doing the investigation himself,” when, in fact, cross examination made it clear Gallagher used a telephoto lens and binoculars to observe the area from roughly 50 feet away.
“He testified that he was able to get a clear view and determine micro and macro indicators at the point of origin, but yet he later clarified that neither he nor the other investigators were able to get to the point of ignition,” Nichols said. “In another breath, he said it was flat.”
Instead of arson, she said all the evidence points to the fire being started recklessly.
“There is no evidence to support the conclusion that a reasonable person would find it highly probable that the firework would explode in the water and then send sparks up and out of the water 25 to 35 feet up a nearly vertical rock ledge,” Nichols said, “and that would be accomplished with somewhere between 10 and 15 witnesses and his wife and children standing next to him.”
Gallagher has been employed by Cal Fire since 1980 and has investigated about 1,000 fires – 200 of those in his current capacity as a fire origin investigator. He has testified in about six different cases as a fire origin expert, with four of them being arson and the other two caused by negligence.
When contacted for a comment on Gallagher, Cal Fire public information officer Daniel Berlant said, “We still don’t want to comment on the ongoing litigation while the District Attorney makes their decision of what the next step is.”
“Our investigation is complete and is with them,” Berlant said, “so we don’t want to say or do anything to impact their ability to prosecute this case.”
The DA’s office did not return a message seeking comment on Tuesday.
“They are reevaluating their case at this time, I think,” Leupp said.
He said Mason is looking forward to getting back to work – he had been employed by a “major retailer” for the past six years – and that he is remorseful for what happened.
“Certainly the place where the fire occurred is a place where he went with his family and friends many, many times. It was an area that he enjoyed,” Leupp said when asked whether Mason was sorry about what happened. “He was very sorry about the fire and he was incredibly remorseful, and the officer testified at the preliminary hearing that the young man was very, very remorseful for what had happened.”
Jon Schultz can be reached at firstname.lastname@example.org. Follow him on Twitter @Jon_AJNews