Caldor Fire pretrial: Defense disputes 'outlandish' bullet theory

Though the pretrial hearing is primarily focused on the presentation of evidence and interviewing of witnesses to determine if charges against the Smiths hold enough water to be taken to trial, the nascent forms of the cases attorneys on both sides may present began to take shape over the course of two days in court.

Robert Bossard, a former county resident who moved away in the wake of Caldor, was the first witness brought out to testify by El Dorado County Deputy District Attorney Jay Linden. Bossard had been camping for nearly a week close to Dogtown Creek between Leoni Meadows Camp and Omo Ranch when the initial embers of the Caldor Fire began to burn Aug. 14, 2021. 

Bossard shared that he had shared camp with another local, Micheal Patrick, who went by the name Miner Mike, and the two had been recreationally gold panning at the creek while camping off the unpaved road designated 9N60.

Being aware of drought conditions across the state, Bossard explained he and Patrick kept to cold meals or using a small camp stove to make coffee, and had not brought guns or used the fire pit during five days of camping. Bossard claims he had not seen any people other than Patrick until Saturday afternoon, when two men driving a Polaris RZR side-by-side offroad vehicle passed by their campsite. Shortly after seeing the duo pass over a hill, Bossard said he heard gunshots from what he thought to be a handgun — "maybe five or 10 rounds, rapid-fire" — coming from the area the RZR had driven toward. 

Half an hour or so later, by Bossard's estimation, the side-by-side drove past the camp again, with the occupants calling out to Patrick and him, warning of a fire.

"They yelled out to us 'there's a fire down there,' and that they had tried to stomp it out but it had gotten too big," Bossard testified. He added that the passenger of the vehicle had mumbled something and shushed at the driver when saying they had tried to stomp the fire out, and said something akin to "don't say that."

Bossard saw the two men drive a short distance down the road and overheard them make a 911 call — "you can hear a lot out in the woods" — while Patrick went over the hill to get a look at the fire.

“When he came back he said, ‘I vote we bug out of here right now,'" Bossard testified.

The Smith's defense attorneys Mark Reichel and Linda Parisi spoke with reporters Tuesday afternoon in the courthouse lobby, describing the prosecution's anticipated case as lacking in scientific merit.

"We are at the very beginning of the story," Reichel told reporters. "What we're starting to see, I think they're going with the theory that bullets caused this fire, which is a theory without any support in the scientific or expert community. I think it's going to be an outlandish theory, which always requires superior, outlandish evidence, which we're not going to see. The people are going to go forth with what sounds like a theory that so far has not been advanced anywhere, probably wouldn't be taught to a high school class for physics, but is going to be tried to be used to convict these people of a crime."

"They did not attempt to hide their identity, did nothing to hide they were at the location and repeatedly called law enforcement to let them know there was a fire," Parisi added. "There was nothing reckless in their behavior. What has become clear is that the Forest Service did not properly maintain that area. There are a lot of questions as to what was done in response to the fire, and now looking to the Smiths to say they were responsible for this immediate ignition is not supported by the scientific evidence."

Closing the impromptu debrief with the press, Reichel stated his unwavering belief in the innocence of the Smiths. 

"They didn't cause the fire, under any circumstances. There could never be any evidence, ever. And that's the one thing I am certain of, that nothing will ever show in any fashion that they caused this fire."

Parisi and Reichel would not comment as to wether or not their clients had fired guns in the area on the day of the fire. Though Reichel and Parisi claim there is no scientific backing to the idea bullets can cause a fire, an August 2013 paper published by the U.S. Forest Service titled "A study of ignition by rifle bullets" found that "bullets could reliably cause ignitions, specifically those containing steel components (core or jacket) and those made of solid copper."

Linden declined to discuss the pretrial with reporters.

While the prosecution brought out a line of witnesses to build their case upon, including investigators from Cal Fire and the DA's Office, the defense's cross examinations gave a peek at the arguments they may rely on if a trial is ordered. Both Parisi and Reichel pulled at threads in testimony regarding how suspects were investigated, trying to call into question if investigators had failed to pursue the right leads in suspects.

Referring to dispatch records from the Caldor Fire, Reichel asked witnesses involved in the initial response to the wildfire about an alleged 8 p.m. radio call from Pioneer Fire Protection District Chief Mark Matthews saying forward progress of the fire had been stopped. None of the witnesses questioned said they remembered such a call taking place.

"I do not recall any radio traffic like that," Cal Fire Battalion Chief Josh Vickers said. "There was never a moment we were not trying to actively engage that fire."

While questioning Cal Fire Battalion Chief Erik Feidler, who worked on the wildfire investigation team for the Caldor Fire, Parisi and Reichel focused on two other potential suspects.

Referring to a recording made by another investigator and later heard by Feidler, Parisi attempted to pursue testimony on the secondhand information someone had heard an Andy Freeman suspected his father, William "Billy" Freeman of starting the fire. Given the parties-removed status of the claim in the recording, Parisi was unable to pursue the line of questioning due to a hearsay objection, with Linden arguing the defense was "fishing" for other evidence.

Sustaining the objection, Judge Vicki Ashworth said, "This isn't a fishing expedition for discovery."

Matthews, who died of cancer last year, was on record as one of the first people on the scene when the fire began. Investigation found Matthews had taken his pickup truck offroad to get eyes on the scene as quickly as possible. 

Feidler shared that Matthews had been identified as a suspect during the investigation, but "we came to the conclusion that he was not responsible for the fire."

Prior to joining on with the Pioneer Fire Protection District, Matthews had worked in Arizona and Oregon. Feidler testified that during the course of his investigation, he had been told by a fire investigator in Arizona that "there were multiple cases" in which Matthews was a suspect. None of those cases led to an arrest or prosecution, according to Feidler, who noted that despite requests for them, he never received copies of documents related to those investigations. Feidler also testified he had been made aware Matthews was removed from operations on the Carr Fire but had not been told the reason for his removal.

The defense's questioning looked at when investigators first approached Matthews the day after the fire started. In a recording of the conversation, Matthews can be heard saying, "Actually, could you guys just arrest me so I could get some rest?" followed by laughter. Though the defense's questioning appeared to consider this sentence as a possible admission of guilt, Feidler responded that he believed it was said as a joke.

"With this transcript from Matthews, is this not possibly a kind of 'My Cousin Vinny' moment?" Linden asked, referring to a moment in the film when the transcript of an interrogation was misinterpreted when read back in court in a different tone. 

Originally set to take place over two days, attorneys agreed early Wednesday more time would be needed to see the pretrial to a firm resolution. The Smiths are set to return to Department 1 Dec. 20 at 8:30 a.m.; after the pretrial concludes, Ashworth will decide if the case presented against the Smiths has enough merit to continue to trial.

The Smiths have been out of custody on bail since Dec. 2021, when their bail amounts of $1 million were reduced to $25,000 for David and $50,000 for Travis.