Arson-related heart attacks murder? DA says yes

[October 23, 2009]  SAN BERNARDINO, Calif. (AP) -- Retired accountant James McDermith's mad dash to retrieve a camper and pack it with belongings as a wildfire chewed closer to his home six years ago may have cost him his life. But it wasn't the flames or smoke that got him.

The 70-year-old church deacon was one of five men to have a heart attack during the 2003 blaze that surged through the San Bernardino Mountain foothills.

With evidence that stress from the wildfire led to the deaths, prosecutors took the unusual step this week of charging a suspected arsonist with five counts of first-degree murder that could signal a tough new standard for arson cases in a region held hostage by fire.

Proving that case, however, could be a challenge: all the victims had a history of heart disease, and prosecutors might be hard-pressed to get a jury to see murder in the medical mix.

Under state law, any death that occurs during the commission of a felony, including arson, can be charged as first-degree murder -- but a conviction will hinge on how much time elapsed between the crime and the death and if any other factors contributed.

"There's nothing inherently wrong with attempting a felony murder conviction in this case," said Robert Weisberg, director of the Stanford Criminal Justice Center at Stanford University. "But the judge could conceivably say I'm not even going to give this to the jury ... because it's too hard to say the fire actually caused the deaths."

Prosecutors insist they have a strong case and are confident they can link the deaths to the arson.

Investigators pored over hundreds of tips, witness reports and other evidence over six years and were finally able to file charges Wednesday, just four days before the statute of limitations was to expire. Rickie Lee Fowler, a 28-year-old convict currently in prison for burglary, was indicted on five counts of murder, one count of aggravated arson and one count of arson of an inhabited structure.

He has not appeared in court and no attorney was listed in court records.

Following a phone tip, investigators interviewed Fowler several months after the fire, but didn't have enough evidence to press charges. They went back to him in 2006 and 2008, when he finally provided additional information that helped detectives close the case, Supervising Deputy District Attorney Victor Stull said.

Stull would not say what he said, but defended the district attorney's decision to charge Fowler in a potential death penalty case. He should have known that people could die -- even from heart attacks -- when he tossed a lighted roadside flare into the brush.

"You can anticipate someone having a heart attack every now and again, but (these were) three on the same day, within hours of each other and the others followed just days after," Stull said. "The arsonist takes his victims as he finds them."

Fowler's case highlights a new determination to charge alleged arsonists with murder whenever possible in a region plagued by wildfires that repeatedly lead to firefighter and civilian deaths, said John Maclean, who has written four books on arson wildfire prosecutions.

Earlier this year, prosecutors in neighboring Riverside County won a death penalty conviction against Raymond Lee Oyler, an auto mechanic who set the 2006 Esperanza wildfire that killed five federal firefighters. Oyler is believed to be the first person in the U.S. to be convicted of first-degree murder and sentenced to death in a wildland arson case.

Investigators are trying to determine who set the Station Fire, a wildfire north of Los Angeles that resulted in the deaths of two firefighters who drove off the road in thick smoke.

Maclean called the Oyler conviction a watershed moment for prosecutors seeking to stem arsons that ravage the region every fall.

"The lesson of the Esperanza Fire is that anyone who starts a fire deliberately is putting himself in jeopardy of the death penalty, even if there was no intent," said Maclean, who is currently writing a book on Oyler's case. "The cat's out of the bag here. You don't have to have an Oyler case anymore to go for first-degree murder or in fact to go for the death penalty."

Like the other victims, McDermith had a history of heart disease, said his daughter-in-law, Lisa McDermith. He had a quadruple bypass in the early 1990s and was having trouble breathing in the thick smoke from the wildfire.

When he died, he was driving from his home in Highland to San Bernardino to retrieve his RV from a mobile home park so he could load it with clothing and camp out in a church parking lot during the evacuation. A crew checking electric wires nearby spotted him in distress and did CPR until an ambulance arrived, but McDermith was dead by the time he arrived at the hospital.

Another man, 93-year-old Charles Howard Cunningham, had a heart attack as he watched his home burn.

Lisa McDermith said because of the victims' pre-existing conditions, she was surprised when a detective said Fowler would likely be charged with murder.

"Who knows how much longer these people would have lived? It was a very stressful situation with the fires, the smoke, they couldn't breathe, they were starving for oxygen," she said. "I think that exacerbated all of their health issues and I really believe that murder charges are justified."

[Associated Press; By GILLIAN FLACCUS]

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