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April 6, 2013
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Robbers Fire revisited: Judge chastises Cal Fire, releases accused


The 29-year-old Sacramento man who allegedly started the Robbers Fire last July is free after a judge released him while questioning the veracity of a Cal Fire investigator’s testimony.

Byron Craig Mason spent nearly eight months behind bars before being released March 5 after Placer Court Judge Colleen Nichols dismissed two counts of felony arson.

Mason may still face lesser charges as his attorney, Thomas Leupp, said that while there are no charges pending against his client, Mason is “in a bit of a limbo position.”

Placer County prosecutors attempted to prove Mason maliciously and wilfully set fire to the surrounding forest when he discharged a firework into a swimming hole at Shirttail Creek near its confluence with the North Fork of the American River.

A spark from the firework caught the surrounding trees and started a 2,650-acre fire that caused the eventual evacuation of 200 people living about 4 miles away from Colfax. The fire cost about $15.3 million to fight.

Mason admitted to investigators that he threw the firework that sparked the fire July 11, 2012, but said he did so accidentally and was remorseful about the repercussions of his act, according to court testimony.

Judge Nichols eventually sided with Leupp, Mason’s attorney, who argued a lack of malice.

“I think the evidence is insufficient for a holding on the charge of arson,” Leupp said, according to court transcripts.

Nichols sided with the defense because she said she saw flaws in the credibility of the testimony provided by one of the prosecution’s key witnesses, Captain Michael Gallagher, an investigator with the California Department of Fire and Forestry.

“I am sorry to say that the court finds that Captain Gallagher’s testimony was less than accurate,” Nichols said from the bench March 5. “At times, the court finds that he was untruthful and unwilling to acknowledge his mistakes. In fact, by denying certain things that he said and did, his credibility was further reduced.”

Nichols referred to testimony supplied by Gallagher Feb. 14 and 15 during preliminary hearings for the trial.

During the mid-February court sessions, Gallagher was repeatedly questioned by Leupp regarding the height of a ledge, where the fire started, according to transcripts.

The investigator stated the height was 15 feet, although it was later measured by experts enlisted by Leupp to be about 23 feet.

In summary statements, Leupp said Mason’s actions — which included rushing up a steep gradient in an attempt to curtail the burgeoning blaze — could not meet the legal definition of malice.

Leupp also played a tape for the court, which was not transcribed.

The lawyer followed up the recording with the question, “Do you hear yourself make the statement that ‘You go for arson in case there is some reduction later on?’”

Gallagher confirmed it was his voice, according to transcripts.

The lawyer then followed up with another question: “Did you ever express an opinion to anyone, before this investigation even started, that although there was evidence in your mind, somewhat evidence of intent of recklessness, that you wanted to press for arson? Did you ever say that to anyone?”

Gallagher’s answer was “I don’t remember,” according to transcripts.

“It gives me concern that we are just trying to prove something regardless of the facts of the case,” Judge Nichols said during her ruling March 5.

Prosecutors have yet to announce whether they will pursue reduced charges, but Judge Nichols seemed to anticipate such charges being filed.

“Mr. Mason is clearly held to answer on a lesser offense, including unlawfully causing a fire under Penal Code 452 (reckless arson), which the people did not argue, yet it is based on the evidence,” Nichols said. “I do see that as a realm of possibility as a charge.”

Cal Fire Spokesman Daniel Berlant said he would not comment on Gallagher’s testimony Thursday.

“I don’t want to impair the District Attorney’s ability to prosecute the case,” Berlant said. “Our investigation is complete and has been submitted, and we will await the next step.”

To contact Staff Writer Matthew Renda, email mrenda@theunion.com or 530-477-4239.


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The Union Updated Apr 9, 2013 08:25AM Published Apr 7, 2013 11:30AM Copyright 2013 The Union. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.