“No firefighter entered that building,” Hayes answers, uttering the words as if they are momentous. “The intensity of the fire would not permit it. And within six minutes of my arrival, there was no longer any building at all. It had completely disintegrated.”
“How many fire scenes have you visited, Chief?”
“I couldn’t say. Thousands.”
“Was this one unusual?” Dylan asks.
“You mean for reasons other than the toll in human lives?”
“Yes, I’m talking about the qualities of the fire itself.”
“It was the hottest, most intense fire I have ever witnessed, or investigated.”
Dylan pretends to be surprised by the answer. “Why is that?”
“The chemical mixture that was used, and the way it was distributed throughout the structure.”
Dylan takes Hayes through a long presentation on the chemical compound that investigators determined was used to start and spread the fire. It was a combination of benzene and polystyrene. There was some gasoline added, which Hayes says made it easier to ignite.
“Is there a name for this mixture that we would all be familiar with?” Dylan asks.
Hayes nods. “It’s a form of napalm.”
Dylan is positively shocked to hear this. “Napalm? You mean the weapon used to incinerate jungles in Vietnam?”
“Yes,” Hayes says, and goes on to describe the different types of napalm, and its devastating properties.
The description is impressive in its detail, and will be very damaging when the jury learns that Noah has the training and education to have concocted it.
Dylan is not going to wait for that to happen. He hands Hayes a piece of paper, and asks him questions about it. It is a copy of Noah’s course studies in college and graduate school, and lists his Ph.D. in chemical engineering. I question the document’s admissibility and Hayes’s standing to testify about it, but De Luca shoots me down, as I knew he would.
“Does this background suggest to you that the defendant would know how to make this mixture of chemicals?”
I object on the grounds that Hayes could not be aware of Noah’s base of knowledge. De Luca sustains the objection and asks Dylan to rephrase.
Finally, Hayes is allowed to say that people with Noah’s background should certainly have the capability of concocting it.
Dylan does not ask Hayes anything about the incinerated bodies that were left in the rubble; he will call the coroner later to describe that in horrible detail. But Hayes has done a very effective job, and by the time Dylan turns him over to me, we already have a steep hill to climb.
“Good morning, Mr. Hayes.” I’m not going to call him “Chief”; at the very least that gives him the upper hand and an added credibility in the jurors’ minds. It’s a small thing, but trials are made up of many small things.
“Good morning, Mr. Carpenter.”
“You talked about the elaborate way in which the fire was started, how the mixture was carefully spread out and placed, and how igniting it would have been difficult.”
“Yes.”
“The person doing it would have to have been intelligent, or at least very familiar with this type of thing?”
“Absolutely.”
“And he or she would have to have been patient in the process? It needed to be carefully thought out and executed?”
“Certainly.”
“And clearheaded and alert?”
There’s a flash of worry on Hayes’s face; he knows that the prosecution’s theory is of a drug-desperate Noah exacting revenge on the people denying him those drugs.
“I’m not sure I can speak to that.”
“If you’d like to ask Mr. Campbell’s permission, we can wait.”
Dylan explodes out of his chair to object, and De Luca admonishes me.
“Mr. Hayes, you’ve already stated that the perpetrator had to be knowledgeable in these matters, patient and careful. You think someone could have done all this while not clearheaded and alert?”
“I suppose that would have been the case, at least for a short while,” Hayes concedes.
“Good. Now this clearheaded, intelligent, careful, patient, alert arsonist would have to have had a knowledge of the chemicals in napalm?”
“Yes.”
“Because you can’t just walk into Home Depot and say, give me a jugful of napalm, can you? There are no Napalm R Us stores around, right?”
“That is correct. It is illegal to possess it, or purchase it.”
“And it requires a chemical engineering degree to create it?”
“Certainly doesn’t hurt,” he says.
I introduce four pieces of paper and have them marked as defense evidence exhibits. I then hand the first one to Hayes, and I give copies of all four to Dylan.
“Mr. Hayes, I have just handed you a copy of a Google search page, have I not?”
Hayes holds it away from him, as if it might be contagious. “Yes, I believe so.”
“You’re not sure?”
“That’s what it is,” he says.
“Please read the subject line at the top.”
“‘How to make napalm.’”
“And near the top it mentions how many hits there were on that subject. Please read that as well.”
He mutters the answer. “Two hundred and sixty-four thousand.”
I tell him that neither I nor the jury could hear his response, and I get him to say it louder.
“Mr. Hayes, I think we can assume that these two hundred and sixty-four thousand napalm teachers think the reader has a place to do it, like a napalm office or something. In case they don’t, can you read the subject line and the number of hits on this search page?”
I hand him the next piece of paper, which he sneers at. “‘How to make napalm at home,’” he says.
“And how many hits?”
“One hundred and ninety-five thousand.”
“Now we’re getting somewhere,” I say. “But there’s always a catch. For instance, what if the person wanting to make napalm can’t read? Then he must be out of luck, right? Or maybe you can read this subject line.” I give him paper number three.
“‘Making napalm videos,’” he says.
“And the hits?” I feel like I’m dragging him to the edge of a cliff.
“One thousand six hundred and ten hits.”
“So I guess illiteracy wouldn’t be a deterrent after all. Live and learn. My bad.” I walk toward him with paper number four. “One more,” I say, and hand it to him. “What’s the subject line?”
“‘Need a chemical engineering degree to make napalm,’” he says.
“And the hits?” I ask.
“No results found.”
I’ve only partially succeeded in my cross of Chief Hayes.
I’ve won what I classify as “debating” points, rather than “verdict” points. Debating points are part of a “gotcha” cross-examination, in which the witness might look bad, or get caught in a mistake. But those kinds of points don’t accomplish much in real life; they don’t win over the jury and help them make up their minds. Only verdict points do that.
I showed how silly it was to assume that it takes a chemical engineering degree to know how to mix the chemicals necessary to make napalm. I’m sure the jury gets that intellectually, and I even think they will give me credit for a smooth piece of lawyering.
But ultimately they will dismiss it as a debating point. At the end of the day they will think that if an arsonist went to the trouble of mixing such a concoction, then it is more likely than not that he had a knowledge of chemicals. And there, sitting at the defense table sits the accused, a chemical engineer.
It will all seem to fit for the jury. It won’t be the deciding factor; it will be a contributing one. And unfortunately Dylan is not nearly finished making evidentiary contributions.
His next witness is Detective Sue Pyles of the Paterson Police Department. She’s one of the lead detectives in the drug enforcement division. Pyles has been fighting the thankless, mostly losing battle against drugs for almost twenty-two years.
Dylan asks her about the occupants of the two ground-floor apartments in the destroyed building, and Pyles prefaces her testimony by saying that there are things she cannot say, and names she cannot mention, because it could prejudice an ongoing investigation.