State vs. Pickard - tried for arson

[Updates added at the bottom. Current through trial day eight, 5/7/08, verdict: NOT GUILTY!]

[Added:  Were you a juror in this case? If so, we would love to hear from you.  Send me an email.  I would need to confirm that you really were a juror, but otherwise you could remain anonymous.]

If you are a juror in the captioned case, I appreciate your interest in what I have to say, but to help the defendant get a fair trial and to comply with the judge's order please hit the "X" in the upper right of your screen and come back when the trial is over.  Thanks, see you soon.

Now for everyone else, let's get down to business.

First some background.  In the wee hours of June 21, 2005, a fire destroyed much of the house at 5000 Heather Rd. in Midland, Texas.  A fire investigator determined that it was arson, and a grand jury issued indictments against two people: Robert Marshall Pickard and Lessie Neal Griffen.  Charges were later dropped against Ms. Griffen, and she married Mr. Pickard becoming Lessie Pickard.

This trial has been postponed so many times it makes the head spin.  For some pretrial highlights see infra.  So finally the trial started on 4/28/08.  Here are some highlights.

Day one - 4/28/08

During the voir dire the prosecutor explained that he expects to prove that Mr. Pickard committed arson through the conduct of another in violation of Sections 28.02, 7.01 and 7.02 of the Texas Penal Code. 

The prosecutor, Aaron Pier, and the defense attorney, Hal Brockett, laid out the way they expected the case to proceed during their opening statements.  Mr. Pier plans to offer enough circumstantial evidence to establish beyond a reasonable doubt that Mr. Pickard is guilty of the charge.  Among other things, he expects to show the following:

• That Mr. Pickard boarded his dogs at a kennel for the first time prior to the fire;

• That Mr. Pickard is divorced from Susan Roberts, and his two daughters live with her;

• That prior to the fire Mr. Rickard's live-in girl friend (now Mrs. Pickard) moved out of the house;

• That Mr. Pickard was in Amarillo on June 20, 2005;

• That in the early A.M. of June 21, 2005, a 911 call was received about a fire at the house;

• That the house was a total loss;

• That testimony from fire investigators will be that the house appeared as if someone had just moved in or out;

• That there were gasoline soaked towels lying around the house; and

• That Mr. Pickard had moved some antiques out of the house prior to the fire.

Mr. Brockett during his opening statement explained that he expects the evidence to show that there is a reasonable explanation for all of Mr. Pickard's actions.  For example:

• The dogs were at the kennel for the first time because, although this was not the first time Mr. Pickard had left town, this would be the first time there would be no one to care for them while he was out of town; 

• There were over 500 personal property items lost in the fire;

• Some of his furniture had been used to furnish a room at another location rented by him and his poker buddies;

• Mr. Pickard was typically out of town two or three days a week at his job selling medical devices and that he often stayed in the operating room as those devices were used by the doctors;

• Mr. Pickard had an adjusted gross income of $174,000 in 2005 and was not in debt;

• Mrs. Pickard's ex-boyfriend had been in the house and made some interesting remarks about the house and Mrs. Pickard, and he drove around in a pickup truck with gasoline cans.

By far the most important part of the trial so far, in my opinion, was the stipulation by Mr. Pickard's attorney, Hal Brockett, in his opening statement that the fire was caused by arson.

Michael Cota -- The prosecution's case began with the testimony of Midland Fire Department Investigator Michael Cota, and much of the testimony seemed designed to provide evidence that the fire was arson.  The defense had already stipulated that, but it was probably too late for the prosecutor to change the plan.

Anyway, it's now a case of "who done it?"

The defense may be planning to pin it on the new wife's ex-boyfriend.  And interestingly, the defense invoked the witness rule requiring all witnesses to exit the court room.  Mrs. Pickard was the only witness present, and she dutifully left the court room.  Note, it was the defense, not the prosecution, who requested the implementation of the rule.  Maybe by the time it's all over we'll get a better idea what that was all about.

So the first day ended with Mr. Cota testifying about what he found at the fire scene.

Day two - 4/29/08

Day two got very interesting just prior to the end of the day.  But let's take things in order.

Michael Cota, continued -- The day began with Midland Fire Department Investigator Michael Cota on the witness stand under direct examination by the prosecutor, Aaron Pier.  He testified about the antique furniture and other items belonging to Mr. Pickard which were located at the poker room rented by Mr. Pickard and his poker buddies.  And he testified about not finding many clothes at the house as he investigated the fire.

He testified that Mr. Pickard told him that he had the dogs boarded before his trip because Lessie Griffen was going to be out of town and couldn't care for them.  And he testified that Mr. Pickard told him that he had visited Ms. Griffen at work on Monday, the day before the fire, which Mr. Cota said was inconsistent with the reason why Mr. Pickard said he had boarded the dogs.  On cross examination Mr. Cota admitted that he had assumed that Ms. Griffen had not gone on the trip but that he had not actually investigated whether she had registered for the conference she had planned to attend or had gotten hotel reservations.

Defense attorney Brockett further cross examined Mr. Cota with questions that were intended to leave the jury with the impression that Mr. Cota didn't spend much time investigating any of the other possible suspects.  For example, Mr. Cota relied solely on Ms. Griffen's ex-boyfriend's cell phone records to verify his alibi while admitting that it was possible that someone else besides the ex-boyfriend could have used that cell phone at the particular time and place where the exonerating call was made.

And apparently someone made an anonymous Crime-Stopper call implicating Mr. Pickard's daughter's boyfriend.  Mr. Cota interviewed him and ruled him out as a suspect.

Other witnesses -- The first firefighter to arrive at the fire scene was called to testify about what he saw.  And although it was an interesting story, his testimony didn't really have much bearing on the issue, i. e., whether Mr. Pickard had someone start the fire.

An analyst with the Texas Fire Marshall's office testified about the evidence that was collected at the scene, but since we already knew the fire was started by arson, her testimony didn't add much.  And the same could be said about the testimony of the private fire investigator hired by USAA, the insurer of the house.  By the way, Mr. Brockett let it be known that USAA is currently fighting Mr. Pickard in civil court over his insurance claim.

The Maid -- And finally, Mr. Pickard's maid.  Most compelling, yet most difficult to understand.  The maid didn't speak English, so an interpreter translated the questions and answers.  Even then she had trouble understanding the questions, and several times the answers weren't responsive to the questions.  Further, from the questions Mr. Pier asked, it became awfully easy to assume that her answers were inconsistent with what she had told Mr. Cota during the investigation.  So she was sent out of the room to listen to the taped interview to refresh her memory.

When she returned she still didn't answer the questions the way Mr. Pier seemed to expect.  She was probably supposed to testify about all the things that were alleged to have been removed from the house prior to the fire.  But she testified that all those things belonged to Daisy (she meant Lessie), and that Daisy had taken them when she moved out.  Furthermore, she testified that Mr. Pickard didn't have many clothes.  That was significant because Mr. Cota and the private investigator had both testified about there not being many clothes implying that they had been secreted away prior to the fire.

But then she dropped a bomb shell.  She said that on the Thursday before the fire she arrived at the house to clean it.  Mr. Pickard was gone, and with her own key she let herself in.  She was in the house by herself, and she heard a noise.  It scared her.  And she found the door to the garage open, and the garage door was open.  Did she call the police?  No.  Did she tell anyone?  Yes, she told Mr. Pickard.  When?  Sunday.  Sunday after the fire three years ago?  No, last Sunday, three days ago!

According to her she didn't think it important enough to tell anyone at the time.  But later she began to think differently and feel very guilty.  So she had her son call Mr. Pickard to interpret for her and ask for his forgiveness.  "Why have you not told me?" she said he asked.  "I'm sorry," she said.

End of day two.

Day Three - 4/30/08

The maid (continued) -- Day three of the trial began with the maid on the witness stand, and it was tough going for her.  It developed in her translated testimony that she had no education, could not read and could not write.  The previous day ended with her telling about a noise and the unlocked doors she found at the house the day before the fire.  And there was a discrepancy about whether the MFD investigator, Mr. Cota, had been told.  Mr. Cota was called back to the stand and admitted that she did tell him that.  However, there was no testimony from any witness indicating that this information was used in anyone's investigation.

The poker buddy -- The next witness was Ernie Shelly, the poker buddy who rented the room they referred to as the poker room.  Due to illness he was unable to come to the trial, so they showed his video deposition.  Mr. Shelly testified that he helped Mr. Pickard move Mr. Pickard's dogs to the kennel in Mr. Shelly's Ford Escape prior to the fire.  This bit of information was important because later testimony by the insurance investigators suggested that Mr. Pickard told them initially that he had moved the dogs by himself in his Cadillac and only later told them about Mr. Shelley's help.  This discrepancy was used by the insurance investigators as one of the "red flags" which suggested to them the possibility that Mr. Pickard may have been responsible for the fire and which led a USAA committee to a deny his insurance claim.

Among other things, Mr. Shelly testified that Mr. Pickard brought some antique furniture to the poker room from his house prior to the fire.

And the issue of gambling debts was raised, however Mr. Shelly proclaimed that Mr. Pickard had no gambling debts. And he stated that Mr. Pickard had once borrowed $5,000 from Mr. Shelly but had repaid him in four months.

Had Mr. Shelly ever been convicted of a crime?  Mr. Pier asked the question, and Mr. Brockett objected, but since we were about to watch the answer on video the judge must have already ruled that it was admissible.  The answer was "yes."  He had been convicted of bank fraud in 2002 and had been given probation.

The insurance company -- The next two witness called by the State were USAA employees, insurance adjuster Richard Carlson and investigator Cristin Gray.  They both testified about being assigned to the Pickard house immediately after the fire, and they were both at the scene around the same time.  They both spoke of "red flags" which suggested arson and that Mr. Pickard could have been responsible for the fire.

They testified separately, but their testimony was similar.  Mr. Carlson's "red flags" were as follow:

• The place smelled of gasoline after the fire;

• The time of day was unusual for a house fire;

• Mr. Pickard was out of town when the fire started;

• Mr. Pickard had kenneled the dogs for the first time prior to the fire;

• He had moved irreplaceable furniture prior to the fire;

• There was a recent job change;

• Some credit card debts;

• A relationship with a woman who also owned a house; and

• Discrepancies in statements of the parties (the only discrepancy he could recall was Mr. Pickard's initial statement about how the dogs got to the kennel).

Ms. Gray had similar "red flags," but added these:

• Mr. Pickard had been late three times in his mortgage payments even though he was current at the time of the fire;

• Mr. Pickard was calm and very talkative about other things but quiet about the fire in her initial conversations with him;

• When asked, Mr. Pickard said he paid his self employment taxes annually but didn't volunteer that he had not filed a return since 1996;

• A door knob had fallen off one of the doors the morning prior to the fire, and Mr. Pickard put duct tape over it;

• There was more property moved from the house prior to the fire than he stated in the initial interview;

• Although he may have had income of $20,000 to $22,000 per month he seemed to be living from paycheck to paycheck;

• He owed his mother $30,000 and Lessie $3,000;

• He couldn't produce his American Express statements; and

• He had been indicted for arson in this case by a Midland County Grand Jury.

Anyway, USAA denied Mr. Pickard's insurance claim, and the company is currently a defendant in a civil suit in which Mr. Pickard is trying to collect on his insurance policy.

End of day three.

Day Four - 5/1/2008

[Note:  As I said above, if you are a juror in this case and are looking at this prior to the end of the trial then you really shouldn't be here.  In the interest of justice and a fair trial, not to mention the Judge's admonition, please stop reading now.]

The ex-wife and the two daughters -  The prosecution is contending that the moving of certain furniture and other items from the house to Mr. Shelly's poker room was an attempt by Mr. Pickard to get valuable or sentimental items out of the house in anticipation of the fire.  And Mr. Pickard's two daughters were asked about those items.  But their answers may have helped the defense as much as the prosecution as neither could confirm that those furniture items had any sentimental value to anyone. 

Another prosecution contention was that there were no family photos in the house at the time of the fire.  One of the daughters went to the house after the fire and collected enough family photos to fill what appeared to be a one gallon plastic bag.

She was asked about the boyfriend with whom she had broken up prior to the fire, and she said he laughed about the fire and posted something about it on his My Space page.  She said she told the MFD investigator that the boyfriend got irrational when they broke up.

The other daughter described the bed frame that had been moved to the poker room.  It appeared in the photo to be an antique.  She said it was broken and that Mr. Pickard had attempted a makeshift fix.

When Mr. Pickard's ex-wife took the stand she made it clear that there was no love lost between them.  When asked what kind of relationship she had with Mr. Pickard's new wife she replied, "I do not have a relationship with Lessie Griffen."

On cross examination Mr. Brockett called to the jury's attention the negative things she told MFD investigator Michael Cota, for example, that he had missed three months child support payments.  Mr. Brockett showed her certified copies of child support records evidencing that the payments were merely late.

The expert witness -  LaDon Richardson, a fire investigator based in Uvalde, Texas, was  called by the defense.  He testified as to his education and many years experience in fire and explosive investigations with the BATF prior to becoming an independent investigator.

He took the jury through the steps a good investigator should take when investigating a fire using the scientific method and a systematic approach.  He had been hired to give his opinion about the investigation of the fire in question, and he gave a blistering critique of Mr. Cota's investigation calling it a "rush to judgment at the original scene."

He said it appeared that Mr. Cota's report indicated that Mr. Pickard was the primary suspect within an hour of the fire.

He gave many examples of why he thought the investigation was faulty.  Mr. Cota had called the house "sparsely furnished" yet photographs showed a lot of burned and damaged furniture as well as other household items.  There had been no key inventory made.  No one could really tell whether the house was locked or unlocked because after the fire there was a big hole where the back door once was.  It appeared as though the financial data regarding Mr. Pickard that Mr. Cota had looked at in his investigation was old.  There was no attempt to take finger prints off of the knob on the water heater.  There was no no attempt to take finger prints off of the gasoline can found in the house or examine it for trace evidence.  There was a fire-damaged flintlock pistol Mr. Richardson found on the mantel which did not appear previously in any of the reports or photographs.  And there were other suspects that should have been more thoroughly investigated.

Mr. Richardson said that the volume of gasoline at the scene suggested to him the possibility of an intentional but premature ignition.  In other words, the person who started it intended to start a fire, but it actually may have gotten started accidentally.  In any event, there was so much gasoline at the scene that the person who started it may have gotten contaminated with gasoline and possibly burned.  Suspects should have been examined immediately.  Emergency room visits and ambulance runs should have been investigated.

"It was not an objective investigation in my opinion."  "Red flags are not evidence."

Lessie Neal Griffen Pickard -  The prosecution called Ms. Pickard, but her attorney initiated a hearing outside the earshot of the jury about her testimony.  Her attorney reminded the parties that she too had been indicted but that the charges were dismissed without prejudice.  So her attorney announced that she was going to take the 5th unless she could get full transactional immunity.  However, the order Judge Hyde signed granted her "use immunity" meaning that what she said or anything derived from what she said could not be used against her.

So she took the stand, and Mr. Pier began questioning. But before we knew it the clock struck 5:00, and the fourth day ended.

Day Five - 5/2/08

Day five began with Mr. Pier continuing his direct examination of Ms. Pickard.  A summary of the day's testimony follows.

Lessie Pickard, continued -- She had lived with Mr. Pickard at the Heather house, but she made the decision to move out because of a relationship issue -- having once been married to an alcoholic, she didn't like to take second chair to something else.  She explained that   Mr. Pickard's obsession with golf placed her in that undesirable status.

She moved out on Memorial Day 2005, roughly three weeks before the fire, and she returned from time to time when Mr. Pickard was home to pick up things.  Among her things remaining at the house when it burned was some furniture -- a chest and a dresser.  And some of her son's clothes were still there.

At some point she became reacquainted with a friend she had known in high school, and they began dating.  He gave her an engagement ring, and they planned to take a trip together to Mexico on July 4, 2005.  She ultimately broke off the engagement but still planned to take the trip to Mexico with him.

She had planned to be out of town around the time of the fire but her trip was canceled.  She testified that it was canceled on Monday or Tuesday the week of the fire (the fire was early Tuesday morning).  However Mr. Pier showed her a transcript of her deposition in the civil case in which she had said it was Thursday or Friday the previous week when the trip got canceled.  So unless the defense produces some evidence about this we will be left not knowing when the trip actually got canceled.

She was asked to tell when she learned of the fire.  She got a call from Mr. Pickard around 4:00 a.m. who told her the house was on fire.  She got dressed and arrived at the scene around 4:30.  There was a lot of commotion with police, firefighters and neighbors all around.  She got teary eyed as she spoke as if the emotion of the moment replayed in her mind as she retold the story.  She spoke with Mr. Pickard's daughter at the scene and called Mr. Pickard to describe what was happening.

Mr. Pier showed her phone records which showed she also phoned the old boyfriend in the early hours on the morning of the fire.  Why did she call the old boyfriend?  To tell him the house was on fire.  Was he still important to her?  No, Bob was.  Why did she call him before calling her her son or daughter?  Because she was suspicious of him.  He did not like her going back to the house to get her things.  "He  did not like the house.  He was intimidated by that house."

She testified that the doors were often left unlocked, however, Mr. Pier had her look at her statement to USAA in which she reportedly said that the doors were always secured and locked.  She did not recall that.

Mr. Pier read her remarks in the initial investigator's report in which she called the place "a big empty house."  She responded on the stand that "it was a big empty house when Bob wasn't there."

When Mr. Pier passed the witness, Mr. Brockett reserved his questioning until he presented his case.  So she will probably be back on the stand after the prosecution rests.

The Accountant -- The prosecution called Ronald Armbruster, an accountant and tax preparer.  He had prepared Lessie's taxes in prior years, and she had referred Mr. Pickard to him.  Mr. Pickard came to him in the fall of 2005 for help with a problem -- it had been many years since he had a filed a tax return.

Mr. Armbruster prepared returns for Mr. Pickard for the years 2000 through 2005 and testified that Mr. Pickard's annual income during those years was in excess of $100,000.  They only went back to 2000 because, Mr. Armbruster explained, the IRS operates under a memorandum restricting them from pursuing returns older than six years without a specific directive.

On cross examination Mr. Pickard's 2005 tax return was entered into evidence which showed a total income for that year of $191,622 and an adjusted gross income of $176,200.

Mr. Armbruster referred Mr. Pickard to another accountant to assist in working out a payment plan for the tax, penalty and interest he owed the IRS.

The Taxpayer Advocate -- Judy Johnson is an accountant specializing in helping people work out their problems with the IRS.  Having been referred by Mr. Armbruster, Mr. Pickard came to her in October of 2006 for help in working out his tax problem.  She helped Mr. Pickard work out a payment plan to satisfy his tax liability which exceeded $300,000.

On cross examination she testified that Mr. Pickard's problem was garden variety as she works full time helping people with that exact same problem.  Self employed people are not subject to any withholding as employed people are, and many self employed people neglect to file their returns finding themselves in the same situation as Mr. Pickard, she said.

Mr. Pickard's problems were unique only in that he had such a high income and high expenses which included her fee and the mortgage payments on the Heather house.  [No mention of how Mr. Brockett's fee fit into the equation.]

It is her understanding that an anonymous tipster reported Mr. Pickard to the IRS.  She sent a FOIA request to find out who, but the IRS apparently denied that request.  Mr. Brockett tried to enter the FOIA request into evidence, but following Mr. Pier's objection and a brief conference with the judge, the matter did not come up again.

Day five of the trial ended early as one of the jurors had a long drive to make.  And the trial should resume on Monday, May 5 at which the prosecutor is expected to rest.

Day Six - 5/5/08

This Monday morning at court started with the prosecution about to rest its case.  With the jury out of the room, the defendant's attorney, Mr. Hal Brockett, made a motion for a directed verdict stating that there had been no evidence that Mr. Pickard started the fire or that he acted with anyone else for the common purpose of starting the fire.  Judge Hyde wanted to look at the cases cited in the motion, and later in the day he made a formal ruling denying the motion.

When the jury was brought into the courtroom to begin the trial day Mr. Aaron Pier rested the State's case.  And Mr. Brockett called his additional witnesses. Remember that the first defense witness was LaDon Richardson, the fire and explosive expert witness who testified out of sequence last week.

The Roofer -- And on this sixth day Mr. Brockett called a roofer who had made an examination of the roof at the Heather house in May of 2005, a month or so before the fire.  One repair would cost around $350 - $400.  But he couldn't make any further estimates because the roof was too steep to walk on.  In any event, the roofer testified that in his opinion that the house did not need new roof.

The Realtor -- A realtor testified that Mr. Pickard spoke with him in 2004 about listing the house for sale.  He did not actually look at the house but testified that if the house were in good shape it could be listed for around $300,000.

The Building Official -- the Building Official for the City Of Midland testified that letters had been sent to Mr. Pickard notifying him that he must either remove or repair the house.  Failing to do that would allow the Building Official to call a hearing before the City Council and seek an order allowing the city to place a lien on the house for the cost of demolition.  As of the time of trial there had been no hearing before City Council on the matter.

The Defendant'sMom -- Mr. Pickard's 83 year old mother was called to the stand.  She testified that she had two children, a son (the defendant) and a daughter.  The mom is self employed with a boot making business in Raymondville, Texas, and she works as a consultant for Armstrong Ranch.  She testified that she has liquid assets of around a million dollars and that the defendant's dad owns 400 to 500 acres of land in North Texas that is currently about to be condemned for the building of a dam.  The initial offer for that land was $2,000 per acre.

She testified that she had loaned both the daughter and Mr. Pickard money on occasion. She loaned Mr. Pickard money on two occasions:  once in the 90's for $20,000 and once in 2004 for $28,000.  There was no promissory note or collateral for these loans, and she testified that she didn't expect repayment and forgave these loans as annual gifts in amounts within the gift limits of the tax rules.  Did she ever tell Mr. Pickard that he couldn't come to her any more for money?  "No."

She testified that after Mr. Pickard's divorce he needed furniture, so she gave him some, including a bed and two dressers that she got from her mother.  The furniture had been in storage and had no sentimental value, she testified.

Photos of the two dressers and the bed had been introduced into evidence previously as items that Mr. Pickard had moved to the poker room before the fire, and they were supposed to support the theory that he moved certain valuable items from the house to keep them from being burned.

Please recall that there was previous testimony that Mr. Pickard had taken the furniture to the poker room so that Mr. Shelly could show it to refinishers for repair estimates as Mr. Pickard was out of town on business so much of the time.  The photos introduced by the prosecution showed the front view only, and the furniture pieces looked like they were in very good shape.  However, new photos were introduced of different views of the furniture, and they showed that the furniture was far from perfect.  There were water rings, stains, scratches and other damage.  And the wood inside the drawers looked damaged too, and the furniture did indeed look to be in need of extensive cosmetic repair.

Another item that had been taken from the Heather house to the poker room was a framed map of what they called the "Armstrong Ranch."  Mr. Pickard's mom testified that there are stacks of those things at the Armstrong Ranch and that they are given to anyone who visits there.  Those things had no intrinsic or sentimental value.

The Country Club -- An employee with Green Tree Country Club testified that it is her job to send letters to delinquent members that they are in arrears with their payments.  No such letter had been sent to Mr. Pickard in 2004 or 2005.  She testified that Mr. Pickard ultimately sold his membership for somewhere between $1,000 and $1,500.

Mr. Pickard's boss -- The CEO of the company for which Mr. Pickard sells prosthetic knee and hip replacements testified that Mr. Pickard earns a commission of 25% of collected sums.  He testified that Mr. Pickard's work was excellent, his financial performance was extremely good, and in the spring and summer of 2005 his job was very secure.

The Amarillo RN  -- Mr. Pickard was in Amarillo when the fire occurred, and the night before the fire he had dinner with a nurse and her husband.  She testified that she was scheduled to assist the next morning in surgery involving one of the prosthetic devices he sold.  When she saw him at 7:15 the next morning he was distraught -- he had learned a few hours earlier that his house had burned.  She told him to go home, but he said he didn't know what he could do there.

Lessie Pickard -- The defense called Lessie Pickard back onto the stand.  Previous testimony revealed that she had originally planned to be in Plano at the time of the fire but that her trip had been canceled.  And the previous testimony left some confusion about when she learned of that cancellation.  So with her back on the stand, Mr. Brockett showed her hard copies of an email notification she received about the trip cancellation.  It was dated June 17 (Friday), but she testified that she was so busy that day that she didn't look at it until June 20, the Monday before the fire.  And she believes it was Monday morning when she told Mr. Brockett about the trip cancellation.

There was testimony about the furniture she took from the Heather house when she moved out.  She took a love seat and two other items.  Mr. Pickard wanted them back so she returned them.  The love seat ended up at the poker room, and the two other items were burned in the fire.

And that ex-boyfriend came up again.   She said he came to see her at her house on the Sunday before the fire.  She said she "had words" with him about her getting back with Mr. Pickard, and she told him to leave.  He appeared angry, and when he left she saw two red gas cans in the back of his pickup.

The Fire Investigator -- Michael Cota was recalled to the stand after lunch, and Mr. Brockett quizzed him extensively about his previous testimony.  Mr. Brockett pointed out two inconsistencies between Mr. Cota's previous testimony and his current testimony and reminded Mr. Cota that he had used similar inconsistencies against Mr. Pickard in reaching his conclusions.

Mr. Cota testified that he didn't notice the condition of Mr. Pickard's furniture in the poker room.  And Mr. Brockett pointed out that it would seem reasonable for an investigator to have examined the condition of the furniture in order to evaluate the validity of Mr. Pickard's stated reason for placing them there.

On cross examination by Mr. Pier, Mr. Cota said that he felt that he didn't have enough time at the poker room because he felt rushed and in danger there.  On redirect Mr. Brockett had Mr. Cota concede that he was a certified peace officer and could have obtained a search warrant and spent as much time with as many police officers as necessary to examine the poker room contents.

Bob Pickard -- As the last witness of the day, the defendant, Mr. Robert Pickard, took the stand.  Did he start the fire?  "No."  Did he cause, solicit or entice anyone to start the fire? "No." Did he know who did?  "No."

Much of what he said had already been introduced into the story by someone or another.  And he testified that he and his previous wife bought the house, and in the 1996 divorce they were each awarded a percentage of the house.  He moved out but bought her interest because he loved the house and wanted the kids to feel comfortable.  The house was empty when he returned, and refurnishing the house was an on going process.  He got furniture from various places, including some from his mom.  When Lessie moved in she brought her own furniture along with her two children.

Due to a change in ownership of the company for which he worked he became unemployed for a while.  His income dropped in 2004, and he got behind in the mortgage, child support and credit card payments.

All of that changed when he found the new job in 2004.  His tax return for 2005 showed an income of $191,000 but didn't reflect bonuses which would be paid in 2006.

He loved playing golf.  One of his golf buddies, Ernie Shelly, had the idea of starting the poker club, so Mr. Shelly rented a room where a group calling themselves the Piranha Club could play poker.  Someone could buy into a game for $200 to $500, but Mr. Pickard never had any more gambling debt than he could pay.  And he testified that he had no great gambling losses.  He and others brought furniture and decorations to the room to furnish it.  And later photos of the room revealed it to be quite nicely furnished.

Lessie didn't like for him to spend so much time on the golf course, and she moved out in May of 2005.  She was still in the moving process when he heard she was seeing another guy, so he had the locks changed and would let her move things out only when he was there.

But, he began to reconsider his breakup with Lessie and began seeing her again.  The Sunday before the fire they ate out, and she gave him the impression that their relationship still had a chance.  He didn't recall whether Lessie told him that her trip had been canceled.

He next saw Lessie on Monday morning before the fire for a five or ten minute visit at the hospital where she worked.   He thinks she did mention that her trip had been canceled, but he decided to go ahead and take the dogs to the kennel anyway.

So he drove to Amarillo, and at 4:00 am the next morning got that call from his daughter about the fire.  He testified that he was in shock.  He was dumbstruck.  He called a neighbor.  He called Lessie and never went back to bed.  He attended the surgery in Amarillo that morning then headed home and began the series of interviews with investigators that eventually resulted in the indictment.

(Update as of 5/6/08 6:20 am:  After reading Bob Campbell's newspaper account I realized that I had misspelled Mr. Cota's name.  That has been corrected in each place it occurred.)

Day Seven - 5/6/08

Trial day seven began with a continuation of defense attorney Hal Brockett's direct examination of the defendant, Robert Pickard.

Mr. Brockett showed Mr. Pickard and the jury numerous defense exhibit photographs of the interior of the Heather house and the garage taken after the fire.  There was a roll top desk, there was a dining room table with chairs, there was a buffet, there were burned out picture frames, there was the flintlock pistol, there were power tools in the garage, all shown in an effort to dispel any notion that the house was not sparsely furnished or that there was nothing of value remaining at the house at the time of the fire.

He testified he had made some furniture that was still in the house at the time of the fire, specifically, an entertainment center with shelves and an automatic light and a coffee table with a secret compartment.  Other items in the house were photos of his children, a caricature of one of his daughters drawn at a trip to Six Flags, a copy of "Lonesome Dove" signed by Larry McMurtry, polo trophies, awards, and a photo taken at a very good friend's wedding who is now deceased.

Mr. and Mrs. Pickard had done some remodeling on the house which included repainting some of the walls and putting tile on some of the floors.  It was an ongoing project.  There were some repairs needed to the plumbing, but he had a home warranty that would cover that.

Regarding the tax situation, he testified that his ex-wife's mother had prepared his taxes before the divorce, and after the divorce that service would no longer be available to him.  Subsequent to the divorce he neglected to file his tax returns, and that neglect continued for several years.  (On cross examination he admitted that he had not volunteered that information initially to investigators.)

There were questions about his child support payments, and he testified about the missed payments during 2004 but that he eventually caught up.  The support payment amount dropped when his oldest daughter reached 18 and graduated from high school in 2005.

Mr. Pickard said that he got a derogatory text message from Mrs. Pickard's ex-boyfriend after the fire, but apparently the text was no longer available as no hard copy was introduced into evidence.  (On cross examination he said he didn't tell the Fire Department or USAA about that text message.)

The insurance investigator, Richard Carlson, previously testified as to the discrepancy in Mr. Pickard's statements to him about how he delivered the dogs to the kennel the day before the fire.  Mr. Brockett had Mr. Pickard read from the Carlson interview transcript, and Mr. Pickard had given an answer about it,  then according to the transcript, stated that he really didn't remember.

Mr. Pickard testified that he and Mr. Shelly were the only ones who knew about some Mr. Pickard's furniture being moved to the poker room.  However, Mr. Pickard volunteered that information to the investigators.

The reason given for moving the furniture to the poker room was that Mr. Shelly could show it to a furniture refinisher.  And photos of the furniture showed that all the pieces had cosmetic damage to some degree.  Mr. Pickard testified, however, that his sister works at a museum, and she advised him not to have them refinished.  So he never did.

Mr. Pickard had some rifles and shotguns stored in the garage along with some woodworking equipment.  And there were orthopedic tools in the garage that could be used if necessary, in orthopedic procedures.

He had several boxes of ammunition in the garage stored in nice cases that had previously been used for orthopedic equipment.  He always kept them snapped closed, but he testified that when he inspected them after the fire he found that one had been opened and was wet on the inside.  He reported that to the insurance company adjuster who told him to report it to the police.   A police officer investigated but did not take any finger prints.

On cross examination Mr. Arron Pier pointed again to the inconsistency in the statements Mr. Pickard gave to the various investigators about how the dogs got to the kennel the day before the fire.

And there were questions about Mr. Pickard's finances.  He testified that his income dropped in 2004, but that he still probably had income of over $100,000 that year.  The amount he borrowed from his mom in 2004 was "$40,000 maybe $30,000" which he borrowed to pay bills.  He had two IRAs with a combined balance of around $12,000, he received around $500 to $600 per month from gas well royalties, and he owned around 25% of the Pickard Partnership which owned real estate.

His liabilities as of the time of the fire included $8,000 owed on his Discover card, $13,000 to $14,000 owed on his Visa card, and $76,000 that he knew he owed to the IRS for a total liability of around $100,000.  When asked if he thought that indicated a healthy financial condition he responded that his family assets should be taken into consideration.

Both the prosecution and the defense closed their cases around 2:10 pm, and Judge Hyde sent the jury into the jury room to contemplate whether they wanted to continue today and stay until they either reached a verdict or until the judge allowed them to leave, or they could or go home and resume tomorrow, May 7.  The jury elected to go home and start again tomorrow.

Once the jury departed Mr. Brockett restated his motion for an instructed verdict on the basis that there had been no evidence connecting the defendant with the starting of the fire and that the evidence wasn't legally sufficient to send to the jury.  Even under the law of parties, he said, there was no evidence that Mr. Pickard aided, assisted, solicited or encouraged anyone to commit the offense.

Judge Hyde had researched some cases and cited a holding that the state can prove its case with circumstantial evidence.  The motion was denied.

Each side will be given 30 or 45 minutes for a closing argument, a jury charge will be read, and the jury will be sent to deliberate the fate of Mr. Robert Marshall Pickard.

Day Eight - 5/7/08

Both sides closed yesterday, and trial day eight began with Judge Hyde reading the Jury Charge.  (See Jury Charge.pdf.)

Each side was supposed to get around 1/2 hour for a closing argument, however the previous day Mr. Brockett had requested 45 minutes.  Judge Hyde told them he had already told the jury they would each get 1/2 hour but that he would give them time reminders but would not be rigid about it.  And both sides would have equal time.  The prosecution would start, the defense would give its statement, then the prosecution would get a rebuttal opportunity.

Assistant District Attorney Brooke Hendricks   -- Ms. Hendricks started the closing argument for the prosecution.  She went over the charges pointing out that there was no dispute that it was an intentionally set fire in a habitation but that the law did not require that they know who actually started the fire.

She reminded the jury of testimony that the dogs had been boarded for the first time the day before the trial, that heirlooms had been removed from the house prior to the fire, and although the state did not have to prove motive, the defendant had a financial motive for burning the house.  She spoke for around five minutes.

Defense Attorney Hal Brockett  -- Mr. Brockett began his closing argument for the defense.  He reminded the jury that Mr. Pickard is presumed innocent, that each element of the charge must be proved, and that being arrested does not mean a person is guilty.

He spoke for around 45 minutes and addressed the elements of prosecution's case: the taking of the dogs to the kennel, the taking of the furniture to the poker room, Mr. Picard's financial situation, and the inconsistent statements.  And he reminded the jury of the explanations for each one.

The dogs had been put in the kennel because Lessie was planning to be out of town and couldn't care for them while Mr. Pickard was gone.  And she didn't want them in her yard.

The pieces of furniture had been taken to the poker room so that Mr. Shelly could show them to a refinisher.  Mr. Brockett reminded the jury of the photos showing the damaged condition of the furniture.  The other things taken to the poker had little value, sentimental or otherwise.

Mr. Brockett asked "who said it was sentimental?"  The investigator and insurance company had deemed it sentimental.  By comparison, the items moved to the poker room represented 2% of Mr. Pickard's possessions when compared with the items claimed to be lost on the insurance form.  Among the things still at the house were Mr. Pickard's gun collection, the medical tools for his job and family photos.  "You tell me that makes any logical sense that Bob planned, aided and abetted this offense."

Mr. Brockett reminded the jury that Mr. Pickard had a gross income in 2005 of $191,000 and an adjusted gross of $174,000.  The IRS liability of $300,000 had not been established at the time of the fire.

Regarding the loans Mr. Pickard's mom had made to him, Mr. Brockett wanted the jury to understand that that is what parents do.  He told the jury of borrowing money from his own father to buy a house, and his father now "lies in Resthaven unpaid," he said pointing in the direction of the cemetery.

Regarding the inconsistent statements the investigators said Mr. Pickard made, Mr. Brockett called them nit picking.  He told the jury that the transcripts for all the investigators' interviews totaled 400 pages.  He looked at the jury and told them that if they had been subjected to that much questioning he could go over their interviews, and "I could pick you apart."

He again addressed the furniture that had been taken to the poker room and contrasted the photos that the fire investigator had taken, which didn't show any damage, with the ones the defense had which shows numerous cosmetic flaws.  He said that MFD investigator Cota had not been objective and was cheating.

Mr. Brockett reminded the jury of the other potential suspects in the case and pointed out that the investigation relied only on a cell phone record to eliminate Mrs. Pickard's ex-boyfriend as a suspect.

He ended his summation by asking the jury to enforce the law and find the defendant guilty only if they were convinced beyond a reasonable doubt.  He asked the jurors to ask any one among them who thought Mr. Pickard was guilty, "What evidence do you have that Bob aided assisted, or promoted the starting of this fire?  It's time for this nightmare to be over."

Assistant District Attorney Aaron Pier  -  Mr. Pier provided the rebuttal argument for the prosecution.

"We've got better things to do than prosecute an innocent man," he began.  But did Mr. Cota cheat?  He reminded the jury that defense witness LaDon Richardson had testified that he thought the fire may have been started for revenge or that the ignition may have been by accident because the gasoline can had been left behind.  "Let's look at revenge."

Mr. Pier spoke of the various potential suspects starting with the daughter's ex-boyfriend.  The relationship had been on and off, so revenge didn't seem likely.  And if a teenager had started the fire might not some of the guns or liquor bottles be missing?  The ex-wife had no motive, he said.  And Mr. Cota and LaDon Richardson had both agreed that the guilty person would probably smell like gasoline.  The ex-wife's daughters had testified of no such smell when she woke them the morning of the fire.

Lessie Pickard's ex-boyfriend had no real motive either.  His trip with her to Mexico was still on as of the time of the fire, so he must have thought he at least had a chance with her.  And he was eliminated as a suspect because his cell phone records showed him to be on the phone at another location around the time of the fire.  To whom was he talking?  Lessie Pickard.  Mr. Pier reminded the jury of her testimony that she called him the morning of the fire.

Regarding the inconsistent statements, Mr. Pier said that they indicated that Mr. Pickard told people what he wanted them to believe at the time he told them.

Apparently referring to the defense explanations for each of the things that pointed to Mr. Pickard's guilt, Mr. Pier made an analogy with the lottery.  You can get one number which doesn't mean anything.  A second number means a little more, three and there might be some money.  But to get all of them requires a tremendous amount of luck.   And Mr. Pickard must be the luckiest person in the world to have all these things line up or else he's responsible for the fire.

Mr. Pier pointed to the financial evidence and reminded the jury that Mr. Pickard had the dwelling insured for $308,000 and that he would have come out much better to get a payoff from an insurance claim than he would by selling the house.  He knew he owed money to the IRS, and the IRS needs cash and not an interest in the family partnership.

Mr. Pier held up the remains of the gas can that had been found at the scene of the fire and asked the jury to look at it and judge for themselves whether any prints or trace evidence could have been gotten off of it.

Mr. Pickard had testified about a derogatory text message he had received from Lessie Pickard's ex-boyfriend after the fire.  Mr. Pier held up a cell phone record that had been introduced into evidence and invited the jury to look at it themselves to try to find any record of a text message.

Mr. Pier reminded the jury that the defense expert LaDon Richardson said that others should have been investigated specifically mentioning Mr. Shelly, the poker buddy, who Mr. Richardson said had been suspected of arson in a previous case.  Mr. Pier reminded the jury that Mr. Shelly refused to cooperate with investigators, then he paused to let that sink in.

Mr. Shelly in his taped testimony had also said that Mr. Pickard was a babbling idiot when they spoke on the morning of the fire.  Mr. Pier reminded the jury of that and said that Mr. Shelly didn't know that another witness would say that Mr. Pickard was calm.

Mr. Pier spoke for around 33 minutes and ended his statement by telling the jury that they need to put everything together, and he asked, "Is he the luckiest person in the world?"

So the trial ended, and at 10:30 a.m. the jury was sent into the jury room to deliberate.

Updated 5:58 p.m.  The jury reached a verdict at 5:35 p.m.  They found Mr. Pickard NOT GUILTY!

Pictured:  From our left to right: Hal Brockett, Robert Pickard and Lessie Pickard.

Comments

[Eric]

George, I'm curious. Are you observing this case in some kind of official capacity, or do you have a personal connection to some aspect of it? I don't mean to pry...I'm just trying to put some context around your observations (which are quite interesting, by the way).

[Geo]

Eric, I'm there in the capacity of a Blogger trying to shine a tiny light into the wheels of justice.

[Galen]

It is very usual for one party to invoke "the Rule" during a criminal trial. Oftentimes one side just happens to invoke it first, but the other side would have if they hadn't been beaten to the punch. Its especially good practice if you expect the other side to call a lot of witnesses.

[Geo]

Thanks Galen. The defendant's wife was the only witness in the courtroom at the time, so it looked a little strange to see his lawyer kick her out.

[Les]

Interesting coverage, Geo. Thanks.
Recently a retired fire chief mentioned to me his concern that no arson cases were being prosecuted in Odessa or in Midland. Any idea how long it's been prior to this case?

[Geo]

Les, I believe there was a trial in Midland very recently in which a man was convicted of murder and arson. And a few years ago a man was tried and convicted in a case in which he was accused of killing his wife and at least one child then setting the house on fire. But in both of those cases the fires may have been set to cover up another crime.

The current case is the only one I'm aware of that involves a charge of arson for profit.

[Redman]

Invoking the rule doesnt just apply to whoever is in the courtoom at the time, but applies to any and all non party witnesses.

[Geo]

Redman, thanks for clearing that up for anyone who may not have known.

[Kyleigh]

Let me get this straight: the guy was out of town, had been dumped by his girlfriend, so in revenge he didn't set her house on fire, but his own?... makes sense. Also, the genius cops didn't question her rebound boyfriend that had just been dumped, had a temper and gasoline. And to add to their brilliance the cops didn't take finger prints off the gasoline can, door knob or water heater? What am I missing? Why are they going after this guy? Where is the smoking gun that puts him there?
Oh, and did anyone consider that is was USAS insurance that tipped off the IRS to go after Mr. Pickard's finances in the first place?
Sounds like Midland cops are bored.

[Geo]

Kyleigh, just a minor correction to avoid confusion -- the investigation was done by the Fire Department and not the Police Department.

[Eric]

I can't wait to hear the verdict on this, and get your take on it, George. You've done an excellent job of recapping the testimony, and of piquing my interest in a case that would have probably otherwise gone unnoticed.

[Kyleigh]

why did my post get deleted?

[Kyleigh]

Sorry, computer error where I couldn't see the page. Why did the Fire Dept and not the PD investigate? I thought wherever a crime was committed the PD would have taken the reins.... BTW- thanks for an accurate representation of the testimony and not trying to blow it out of proportion in one way or the other and putting a media-inflamed-spin on it.

[stephanie]

How do you feel the jury percieves the testimony, information, etc?

[Geo]

Thanks Eric, this has been a very interesting case. I hope my efforts here have been worthwhile.

[Geo]

Kyleigh, since the FD specializes in fires and related matters then somewhere along the line there developed a specialization of investigating the cause and origin of fires. I don't know how it is in other cities, but here those specialists work in the FD. The FD investigators have received the education and training for TCLEOSE certification, and they are licensed peace officers, can carry firearms, and have the authority to make arrests. (And thanks for the kind words!!)

Stephanie, I really couldn't say how the jury has perceived all they've heard. They have been taking notes, and I believe they have been paying close attention. Ideally someone could watch the jury for body language, facial expressions and other signs of agreement or disagreement. But I wasn't able to do that. Sorry.

[jeff]

When is the jury expected to render it's decision? Any indication which way they are leaning? If you were on the jury what would you take into consideration?

[jeff]

.

[Kyleigh]

Haha!! Not Guilty Verdict In!! That DA can go suck on a tailpipe!!!! :)

[Kyleigh]

And what a DA JackAss- saying that Robert Pickard was the "luckiest guy in the world." Imagine the horror and devestation that man has been going through for 3 years. Loses everything in a fire and then has a blow-hole DA going after him b/c he's bored. Not one person ever said or claimed that Mr. Pickard had ever felt any happiness or relief from watching his entire life's belonging's go up in flames, and there was never a single person that claimed so much as to have heard that he recruited someone. The DA may have been doing his job, or just wanted to fill up his winter since he couldn't play golf, but next time he should try and get a case that actually has elements. The DA and the FD should go blow that smoke up someone else's behind!

[jeff]

.

[Kyleigh]

Sorry to be filling up your comments section! :p... BUT-- did anyone get a sense of what were the high points that led the jury to find the NG?

[jeff]

Good for the Pickards!

[jeff]

.

[Sandra]

For 3 years I have watched this couple suffer. They have been humiliated, their reputations have been destroyed. They have fought to hold their heads up and face this town with dignity and humility. No two people deserve an apology more than Bob and Lesslie. Do you think the DA or the Fire Investigator will face this town with dignity and humility and apologize to them? I think not! They will hide behind their job titles and use the excuse "I was just doing my job"!!!
To my friends, I say "I am proud to know you and proud to call you my friends".

[Eric]

I don't know any of the people involved in this case, on either side, but based on the reporting done in this post, a not guilty verdict seems like the right decision.

Thanks again, George, for distilling a complicated case into a very interesting and enlightening account. You might have carved out a new niche for yourself in the blogosphere!

[CC]

Mr. Shelly a hostile witness?? When one has had a heart attack, then been diagnosed with cancer, that makes him uncooperative?! Give me a break! The DA wasn't grasping, but trying to find any way, to try to form some kind of a case. Against an innocent man. How absolutely bored and boring, he must be?

[jeff]

.

[Les]

Excellent reporting, Geo. Thanks.
Now look over the dockets and find another case about which you can entertain us. I'll wait right here...
(If I owned a local newspaper I'd be making you an offer to be my court reporter on major trials. Alas, I don't own a newspaper.)

[Geo]

HA HA, good one Les. Tell ya what, let's take turns. The next one is all yours.

[teatotaler]

eric, thanks for that input

[NRANMH!]

They are nice folks that have lived through a total nighmare. If you new them personaly you would know they would not have done this. That being said, best of wishes to both of them.

[jm]

The case about the man who was convicted for murder and arson was Mr Ernie Shelly biological son from his first marriage. I just say this case, and the district atty is correct this is not the first arson investigation Mr Shelly has been questioned about.

[Geo]

That's very interesting, JM. Thanks for sharing that.

[[email protected]]

What was the name of the guy who murder his wife and children and then start the house on fire. He was Mr shelly only son.

[Geo]

Marksjeanne -- Garland Leon Martin was convicted of murder in Midland, County, in 1998 after his common law wife along with two children were found dead following a fire in their house.

Here's his TDCJ page:
http://168.51.178.33/webapp/TDCJ/InmateDetails.jsp?sidnumber=02770104

And there's info about that case here:
http://www.innocenceproject.org/Content/399.php