By Mark Kirk
Edited by Clara A.T.
Boggs, JD Editor in Chief
Issue 26, page 8
story begins in about the last week of, November 1996. I came home
from work one day and my girlfriend, Darlene, told me that one of the
burners on the stove had caught on fire that day. It was the right
front burner. So I took a look fat it. It was saturated with grease.
I raised the stove- top and discovered that the entire under side was
a literal grease pit. I cleaned the element as best I could, and
replaced the aluminum foil on the drip pan. There was grease residue
inside the receptacle where the element plugged in, that I couldnít
get to. So we decided not to use that burner until the maintenance
man from upstairs, Steve Rivera could take a look at it. Darlene
informed her kids, Jason (16) and Brandon (10), not to use that
A week or so later,
On December 4, 1996, Darlene and I went out drinking in the
afternoon. We met up with two friends of mine at the bar, Joey Ortiz
and Tom Garrett. Later that evening, the four of us left the bar and
went to visit a friend of Joeyís. Tom bought a half pint of
Captain Morgan Spiced Rum to take along. We stayed at the friendís
house for about an hour or so and then went back to the bar.
We stayed at the bar
for another hour or so and then the four of us went back to our
apartment. Once there, I made a trip to the liquor store and bought a
twelve pack of beer and a pint of Capt. Morgan.
Later, during the
course of partying, Darlene and I got into a heated argument. She had
been flirting with Tom. So Tom and Joey left while Darlene and I
continued to argue. We were both admittedly pretty intoxicated that
night. We had been drinking since earlier that day.
The next thing I
remember is waking up and the room was full of smoke. I heard Darlene
and Jason shouting in the kitchen. I was still in kind of a stupor,
but remember going through the dining room and seeing that the stove
was on fire. The heat was intense and the smoke thick and black. I
went out the front door into the hallway and heard Jason screaming
about his cat. So I tried to go back in to find the cat. I burnt my
hand on the metal door when I pushed it open. By then the heat was
too intense to get back inside. So I turned and ran out the front
door of the building. Darlene was already there.
Darlene, the kids and I were attended to by paramedics. It is now the
early morning of December 5. At 6 a.m. and the four of us were taken
to police headquarters and questioned about the fire until 3:30 p.m.
We were informed that three people died in the fire. I was ordered to
return the following day to submit to a polygraph test.
I arrived at police headquarters on December 6, at 9 a.m. I took a lie detector test conducted like an interrogation. After the polygraph I was taken to another room and interrogated for several more hours. After several hours of being threatened with a death sentence and other psychological manipulation I confessed to pouring rum on the electric stove burner.
I received a copy of the transcripts of the interrogation from my
public defender, several months later, I noticed some distinct
discrepancies in them. For one, during the interrogation I had
requested a lawyer. My request was nowhere in the transcripts. I
brought this to the attention of my attorney and the fact that there
were unexplainable and abrupt changes in the flow of conversation
recorded in the transcripts. It was as if the transcripts had been
edited and it left distinct incongruities to the flow of conversation
in certain parts.
So I asked my lawyer
if we could get the confession suppressed. He said it would be better
strategy to put up the appearance of trying to suppress it, but to
let it in, thus committing the State to their case-in-chief. So he
put up a weak argument at the suppression hearing, after which the
judge duly denied our motion to suppress. Our strategy was to prove
the 70-proof Captain Morgan Rum wouldnít burn on an electric
stove. You can torch something like tequila or Bacardi 151 because
they are ďpure,Ē and not a blended alcohol. Captain
Morgan is blended with flavors and water, that retards it from
A bench trial was
commenced in October of 1997. I was swiftly convicted and sentenced
to three life terms, no parole, plus 23 years. A weak appeal by my
lawyer netted an affirmation from the Delaware Supreme Court.
During the trial key evidence was presented by the State that contradicted the statement I had given police. Darlene, Jason and Tom all testified that they saw the rum had been drank prior to the fire. Jason even went so far as to say that he specifically saw Tom take the last drink and later saw the empty bottle lying in the living room. They all testified that there had only been one bottle that night. Receipts from the liquor store even confirmed this. Joey confirmed it, while testifying for the defense. All of them said that Capt. Morgan was Tomís drink of choice not mine. Against all that evidence the State said there simply must have been more than one bottle. The judge mysteriously concluded that there might have been as many as three bottles present that night.
In my confession, I
had supposedly stood outside on the patio and watched the fire while
everyone fled the building. For the State, Newcastle County Police
patrolman Wagonhoff testified that upon arriving at the scene, he saw
Darlene and me exiting the building together. I canít think of
a better witness than that. The man is, after all, a trained
professional who was alert and sober at the time.
Also, the bottle
presented at trial was found outside away away from the building. My
fingerprints were not on it.
Interesting also is
the fact that, interrogators had first asserted every facet of my
statement. Every one. I was threatened with the death penalty
numerous times and the State sought it at trial. I was told that my
refusing to give a statement was making me look guilty and that this
could be used against me. One Fire Marshall even said that he could
make the whole thing look anyway he wanted and that if I didnít
admit to starting the fire he was going to make it look like I was a
cold blooded killer who burnt these people up on purpose. Itís
all in the transcripts.
Also in the
transcripts are the two times I told them I didnít want to talk
to them any more, but they kept right on interrogating me. During the
suppression phase several officers testified I was escorted out for
smoke and bathroom breaks. In the transcripts thereís even a
spot where on officer reminds me of this. Nowhere in the transcripts
or the tape of the interrogation presented at trial is there mention
of me leaving or returning. Nowhere in the videotapes am I seen
leaving or returning. So what happened to those portions of tape and
transcripts? The videotape even shows me attempting to leave three
times where Iím told I have to remain in the room. Now I can
say quite honestly thereís no way I would have gone several
hours without having to use the bathroom and have a cigarette. Those
portions of tape had to be edited out along with my request for an
70-Proof Rum Wonít Burn
to trial, I constantly told my lawyer that there is no way that
70-proof rum will burn, let alone on an electric stove. I told him I
wanted someone to perform a test that would demonstrate this fact. He
kept refusing my request. Finally, after a slew of phone calls from
friends and family to the chief of the public defenderís office
they relented. My lawyer informed me that he had retained the
services of Dr. Stanley Broskey, a forensic chemist who had 19-years
experience with the New Jersey State Police Crime Lab.
Dr. Broskey provided
my attorney with videotape where he makes several attempts to ignite
Capt. Morgan Rum on an electric stove burner. His tests were
controlled and recorded. He could not get the rum to ignite. A few
days later my lawyer came and apologized for not believing me.
Subsequently, a few days before trial fire marshals suddenly
announced that they too had a test burn tape to present. Both tapes
were presented at trial.
In the Fire Marshals
tape a half-full, fifth bottle is first shown to the camera. Then the
screen goes blank and we next see someone standing about twenty feet
away with an almost full bottle. They are standing next to a stove in
someoneís backyard. The burner element on the stove is glowing,
white-hot. As soon as the first trickle of the substance from the
bottle hits the burner it erupts into this violent flame that shoots
two or three feet into the air.
My attorney asked
the Fire Marshal on the witness stand why the bottle is at first only
half full. He even played the tape back a couple of times. The Fire
Marshal, Willard Preston III, while looking right at the screen said
that the bottle was full. He was caught in a blatant lie. He also
testified that the rum would have required a pooling effect in the
drip pan in order to ignite. This; however was belied by his own
After viewing the
Stateís tape, Dr. Broskey said that there was no way that the
element should have been glowing white-hot. He concluded it must have
been tampered with.
tape was shown to the court while he explained the procedure
step-by-step. He explained that because the rum in question was only
70- proof it was actually two-thirds water. It simply did not have
enough alcohol content to combust as the Fire Marshals implied. He
also said that he couldnít even get the rum to burn with an
However after Dr.
Broskey finished testifying the prosecutor ridiculed him. He even
went so far as to call him a quack. Unfortunately, it appeared as
though Dr. Broskey might have at one time suffered a stroke or
something, and this didnít help matters much. It still doesnít
change the fact that 70-proof rum isnít going to burn on an
photographic evidence of the stove shown at trial. In one photo it
can be clearly seen that the underside of the stove-top was covered
with a heavy residue (grease) and that there had been substantial
burning there. This confirms the grease pit described by Darlene.
When the Fire Marshal was asked if any testing had been done on that
portion of the stove he replied that, ďthere had, but no one
knew what happened to the results.Ē (convenient, huh)?
would like to point out that there were some political ramifications
attached to this case. At the time these apartments, Beaver Brook
were built there was a scandal uncovered in the building inspectorís
office. It seems that building inspectors were taking bribes from
builders to pass the inspection on buildings that werenít
meeting State codes and requirements. The same was discovered for the
neighborhood I grew up in, Brookmont Farms. According to the papers
at the time a couple of people were prosecuted or dismissed, but
nothing really came of it; until now.
The day after the
fire the local newspaper ran a feature article raising questions
about why the building had burnt so quickly and severely, why there
had been no sprinklers installed and whether the building met
officer at Gander Hill Prison pulled me aside one day and told me
that he was a volunteer fireman and was at that fire. He said in his
twenty years of fire fighting, he had never seen a building burn so
fast or hot. It was his conclusion that the buildings hadnít
been built with the proper fire brakes between the individual units.
This, of course was told to me strictly off the record. He said he
had to think of his family.
After the paper ran
its article I became the focus of an investigation. It was like they
needed to draw the publicís attention away from the information
revealed in the paper. The scheme worked perfectly for everyone and
the media now had an instant monster to focus all their anger
Consider if you will
what would have happened if the truth had prevailed. Everyone living
in that building, plus the families of the deceased would have had a
multi-million dollar lawsuit. Now they have nothing but their hatred
Since my conviction
in December of 1997, there have been more than 40 fires at that same
apartment complex. Thatís not counting the fires at the sister
complex, built at the same time. I make it a point to check the
newspaper everyday. I have also been informed that Beaver Brook Apts.
had been doing major renovations during the past couple of years.
Theyíve been completely gutting and rebuilding each building
one at a time. Iíve been trying to obtain building records and
permits for the past two years, but because Iím incarcerated
Iím not entitled to that information.
February 26, 2004, my third motion for post-conviction relief motion
was granted by Superior Court Judge Ableman. His ruling was based on
the Delaware Supreme Courtís decision in Williams v. State,
818 A.2d 906 (Del. 2003), that Felony Murder in the First Degree
ďcannot attach unless the murder is a consequence of the felony
and is intended to help the felony progress.Ē Since the state
had not proved that at my trial, Judge Ableman ordered that my
first-degree murder and assault in the first-degree convictions be
vacated. He further ordered that based on the findings of my trial
judge, that three manslaughter and two second-degree convictions be
substituted. The prosecution recommended a sentence of 44 years be
substituted for my life sentence. Quite a comedown from the death
penalty they sought after my conviction.
had filed m successful motion pro se,
since my family no longer has the funds to afford an attorney. While
it is a step in the right direction, I am innocent and so I must
carry on to win my exoneration.
My deepest thanks to
you for reading about my case. Sincerely,