MADERA COUNTY – After three months of testimony, dozens of witnesses and hundreds of exhibits, closing arguments in the trial of Kenneth Jackson and Alice Waterman wrapped up just before noon today, and the jury has begun their deliberations.
The Coarsegold couple was arrested on June 25, 2013, following a string of suspicious fires in the Yosemite Lakes Park area in May and June of last year.
Jackson is charged with 31 counts of arson, and 1 count each of conspiracy, resisting arrest and assault on a peace officer. Waterman is charged with 10 counts of arson and 1 count of conspiracy.
Judge Dale Blea prepared for the long trial by seating 8 alternates in addition to the 12 jurors, and the lengthy proceedings concluded with only 3 jurors released for various reasons.
Senior Deputy District Attorney Sally Moreno began her presentation to the jury on Monday, Apr. 28, by taking them through the 31 counts, one fire at a time. Her purpose, she said, was to show the pattern of when and where these fires took place, and how the two defendants conspired in planning and setting them.
As she went through each individual fire, Moreno listed them on a grid, showing that most happened on Saturdays and Sundays, with several on Wednesday evenings. The large maps displayed throughout the trial, showed that 21 fires occurred along the roadways in and around Yosemite Lakes Park (YLP) and 10 near the Jackson/Waterman residence.
Moreno reminded the jury of the evidence showing that once Cal Fire investigators installed surveillance cameras around YLP, Jackson’s vehicle was captured on video either going towards or leaving the area of every single fire, sometimes more than once, within a 20-minute window before and after the fire was reported. There was only one exception, and that fire started where there was no camera along the roadway between the defendants’ home and the location of the fire. However, a covert investigator near their home heard Jackson’s truck leaving and returning just before the fire was reported on Revis Court, not far from their house on East Revis Circle.
“His vehicle was captured in the target area of every single fire, 21 separate times on 16 different fires,” said Moreno, “and Ms. Waterman and Mr. Jackson’s father both testified that no one but Mr. Jackson ever drove that truck.”
As to the charge of conspiracy, Moreno said that both were giving the same misinformation to investigators, each saying they had seen the white Jeep Liberty surveillance vehicle on June 23, when it had been turned back to the rental company on the 16th.
Moreno told the jury that Waterman had demonstrated consciousness of guilt when she came upon one of the covert officers in camouflage at the vacant house next door and asked him if he was doing surveillance.
“With all these fires going on, and the residents of YLP up in arms, wouldn’t a reasonable person think this guy is starting the fires?” said Moreno. “A person who wasn’t responsible would think this guy is lighting fires. But she asks if he’s doing surveillance.”
The prosecutor pointed out that once the officer’s cover was blown on June 14 when Waterman discovered him, there were no more fires near the defendants’ house until the night they were arrested on June 25.
Moreno also noted that Waterman admitted to being at the scene of two separate fires just as they started.
Though the case is largely circumstantial, and neither defendant was ever witnessed lighting a fire, Moreno told the jury that circumstantial evidence is not the same as manufactured evidence.
“If Cal Fire wanted to manufacture evidence, the investigator could have just said, ‘I saw her walk into those bushes and set that fire.’ But he told you exactly what happened. They’re in the business of finding the person who is starting these fires. What happens if they arrest the wrong person? It’s circumstantial, but every single circumstance points in the direction of these two defendants.”
Craig Collins, attorney for Kenneth Jackson, began by telling the jury that the charges against his client are “as serious as it gets. The stakes are too high to base your decision on conjecture and lack of evidence. You’re being told to assume this, infer that, hypothesize and read between the lines or be Sherlock Holmes.”
Collins has maintained throughout the trial that the exclusion analysis, whereby investigators rule out every other possible cause, leaving only arson, is bad science.
“It’s interesting to me that lack of evidence equals evidence,” he said. “Cal Fire’s investigation is contrary to your duties as a jury. No one saw him make a device, throw a cigarette or light a fire. Making assumptions based on no evidence is contrary to the law.”
He has been equally critical of the evidence collection investigators did on this case.
Collins asked the jury to look at the investigation from both points of view – either Cal Fire did a great job, or they “screwed things up.”
“If you say they did an absolutely complete and thorough investigation, then the evidence says innocent, because there is reasonable doubt,” said Collins. “You have cameras strategically placed, undercover people putting in hundreds of hours, people in YLP looking everywhere, more resources being called in, YLP Security, Town Hall meetings trying to get evidence, Public Works, mobile surveillance, volunteer firefighters and their spouses, sheriffs in the area, GPS tracking, fingerprints, DNA tests, the Department of Justice; you took their cell phones and computers, searched their vehicles and their house, and what came of that? Nothing! A match, a magnesium starter. No evidence of them being involved.”
He then invited the jury to consider the other option – that Cal Fire just screwed things up, saying that in that case, any evidence collected by investigators must be suspect.
“Lost lighters, falsified evidence, questions as to chain of evidence, cross-contamination, text messages lost, don’t know how to use a computer, reports changed, evidence lost, cars going the wrong way, using false reports to testify, wrong data, wrong times, they were too busy. It may seem nitpicky, but not when it cuts to the heart of the case.”
Referring to the testing of several cigarette butts that came back as having no DNA, or DNA that did not match his client, Collins said the prosecution is having it work for them either way.
“If it doesn’t exclude Ken Jackson and Alice Waterman – Guilty! If it does – Who cares!”
As for why Jackson’s truck was seen on so many videos, Collins pointed out that there are only three ways to leave YLP, and that Jackson had no set schedule.
He also disputed the notion that Cal Fire was developing any other suspects, saying they already had their minds made up, ignoring evidence and witnesses that didn’t fit their theory, and excluding two suspicious fires from their original series because they found out Jackson was out of town on those days.
“This is a trial of assumptions,” said Collins. “Assuming delays for ignition, assuming how long it takes smoke to build up, assuming a fire is arson. If you find an incendiary device, it’s arson. If you find nothing, that’s evidence of arson. Negative corpus means making conclusions based on no evidence, and it’s contrary to the law in this case.”
Waterman’s attorney, Greg Gross, also attacked the Cal Fire investigation, criticizing not only their evidence collection but their conclusions, based on what he said is a complete lack of evidence.
He used the example of someone taking a vacation, spending the night at several motels along the way where various crimes happen in the vicinity while you are there, and since you are the common denominator at each location, you must be the criminal.
“Yes, there are fires. That doesn’t mean they are arson, and it certainly doesn’t mean Ms. Waterman started them,” Gross argued. “This is a series of fires where Cal Fire doesn’t know how they started. Don’t make it something else just because it isn’t what you want it to be.”
The law says, he told the jury, that if, based on circumstantial evidence, you can draw two conclusions and one points to not guilty, you must, not “may,” adopt the one that supports not guilty.
He also accused the prosecution of playing a game with the facts of the case.
“If there’s a gap in the facts in support of guilty, make an assumption,” said Gross. “The cause of every fire is undetermined. They have absolutley nothing, but they determined it’s arson.”
Gross told the jury that the prosecution abandoned the notion of “hot sets,” fires lit with a match or a lighter with no device used, because they couldn’t fit it into their theory.
“They selected the facts that support their theory, and that’s why we have been here for the last four months,” he said. “That’s unacceptable.”
The prosecutor gets the last word because they have the burden of proof, and Ms. Moreno took the opportunity to address the accusations of a sloppy investigation.
“This is a real investigation with real people,” she said. “Of course there were mistakes, and we didn’t try to hide them. But it doesn’t compromise the investigation. The defense wants you to look everywhere but at the evidence. They want to point at the investigation and at the prosecution, to keep you from looking at the evidence.”
As for the defense’s arguments that negative corpus is bad science, she told the jury that a fire doesn’t start by itself.
“It’s proper to use exclusion analysis to eliminate everything, and what is left is the only thing that can happen,” she said. “We didn’t determine an ignition source with no supporting evidence. There were camera captures at all the fires. Not most, not many, but all. Every vehicle that showed up more than twice was investigated. That is not negative corpus, that’s a host of evidence.”
The hot set fires, she said, didn’t disappear. There were 10 of them, right behind the defendants’ house.
She then invited the jury to look at the big picture.
“Jackson is the only person present at each of these fires. One vehicle appears at each of these fires. The fires that aren’t along the road are behind his house. There is no reasonable explanation for 10 fires at his house. There is no reasonable interpretation of all this evidence except that these defendants committed these crimes.”