Rim fire defendant's case will likely focus on investigator interviews
By Marc Benjamin
The Fresno BeeDecember 3, 2014 Updated 16 hours ago
Lawyers for Keith Matthew Emerald want to know why officials failed to record a phone call in which he recanted his admission to starting a campfire believed to have sparked the Rim fire that burned into Yosemite National Park last year.Emerald's lawyers also want to examine personnel files of U.S. Forest Service investigators who interviewed Emerald to question their credibility as witnesses.
Lawyers on Wednesday sparred in U.S. District Court in Fresno over documentation that could be used in Emerald's trial. He faces multiple counts of starting a fire on Aug. 17, 2013, that grew beyond his control in the Clavey River Canyon in Stanislaus National Forest. The Rim fire grew to 257,000 acres, the third largest in California history.
Emerald, 32, of Columbia in Tuolumne County, was indicted in August for kindling a fire that spread beyond his control. When the fire started, there were temporary restrictions in place prohibiting fires. He is charged with lying to a federal agent when he said he did not set the fire.
The criminal charges — setting the Rim fire, leaving it unattended, violating a fire restriction and making false statements to investigators — carry a maximum sentence of 11 years and more than $500,000 in fines. He was not present in court under a waiver that allows him to be absent for hearings. He is free on $60,000 bail.
Emerald agreed to two formal recorded interviews. He said he was bow hunting and started a small campfire to cook a can of soup. He previously said he thought the fire was started by marijuana growers.
"Our position is that the second interrogation is replete with misconduct on the part of the interrogators," said Janet Bateman, Emerald's lawyer.
Emerald believed he was alone, but there were reports among firefighting aircraft pilots that people were stranded while swimming in a nearby creek. That story was not substantiated, but Bateman said that information could be "exculpatory evidence" for Emerald.
A Cal Fire pilot must be interviewed to clarify whether swimmers were present, Bateman said.
Assistant U.S. Attorney Kevin Rooney said the report of swimmers in the area may have been misinterpreted — pilots were radioing one another to search for swimmers in the area. He said his office will interview the pilot to learn whether swimmers were present.
Bateman said the information about Emerald recanting his admission was never recorded but the interview in which he admitted starting a fire two weeks earlier had been, she said.
Bateman also will have an opportunity to examine the personnel files and investigative policies and techniques of U.S. Forest Service investigators.
Rooney said the conversation was not recorded because Emerald recanted his admission during a telephone call on Sept. 17 to set up a tour of the area where the fire started, not during a formal interview.
In the search warrant affidavit filed after his indictment, Emerald told investigator Kent Delbon that he felt "he had been pressured for an explanation or he would be charged with arson." He added that Delbon "should investigate the firefighters who allowed the fire to get too big," the search warrant said. He also said he no longer wanted to talk to Delbon about the fire.
Rooney said Emerald shouldn't have felt pressure, because he met with federal investigators voluntarily without a lawyer and could have walked out at any time.
Rooney said that although the phone call was not recorded, it was documented by agents.
Bateman countered by saying the agent should have written a report based on the phone call. She said the evidence federal investigators have is linked to Emerald's admission and that no "physical evidence" exists.
Defense lawyer Marshall Hodgkins, who often defends police officers in officer-involved shooting cases, said the information about Emerald recanting his admission should have been documented, even recorded.
"If he had made statements that made him look guilty, they would have recorded those," Hodgkins said. "… In my opinion, at the second he starts to recant, I would have turned on the tape recorder."
The Rim fire covered 400 square miles, including 123 square miles in Yosemite National Park. It cost $125 million to extinguish, according to the U.S. Forest Service.
The next court hearing is Feb. 9 in U.S. District Court. No trial date has been set.
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