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Pfingst noted that, according to the state’s witness, John Nesheiwat, Kurtenbach told Joe that the arson would be “real simple,” implying that “it could be safely and easily accomplished.” In a written argument, Steigerwalt contended that “There is nothing inherently dangerous to human life in pouring gasoline on the floor of a house, even where it was done knowing someone would come in later and set a fire.” What’s more, there is no way to judge whether Kurtenbach “actually appreciated the risk involved.”

Risk, as another court case has established, is “a subjective standard.” What is the relationship between the amount of gasoline poured (in this case, a lot) and whether the arsonist set the fire “irresponsibly,” that is, endangered himself? Kurtenbach may have known that pouring a lot of gas would be highly explosive and accomplish the mission, but, his lawyers contended, he didn’t instruct Joe to do it in such a way that Joe would be killed.

Back and forth went the claims and counterclaims during the two-week trial.

Pfingst had a friend of Joe’s testify. The friend said that Joe was doing this arsonous favor for his debt-ridden boss on his own power; Kurtenbach had no idea what Joe was planning. Prosecutor Khalil described how Kurtenbach had foreshadowed the surprise fire mere days before the house was to blow, by telling friends he smelled a propane leak; he then moved a stack of paint cans next to the hot water heater, further arranging the evidence.

Pfingst noted that the jury shouldn’t believe John Nesheiwat, the prosecution’s star witness. John was, according to Pfingst, a “pathological liar.” He read a “top 25 list” of contradictory statements John made under oath. With the same distrust, Pfingst continued, jurors should throw out the testimony of Justin Kurtenbach, who implicated his father in the deed: Justin, Pfingst reminded the jury, had admitted on the stand that his hatred for his father was an “11” on a scale of 1 to 10.

Khalil described how on three separate occasions Kurtenbach was cited for “dispensing fuel” in five-gallon jugs, “inside his store.” Moreover, Kurtenbach had to “remove and install underground gasoline tanks” at his Nebraska filling station, which proved he recognized the “combustibility of gasoline vapors.”

(A few arson facts: 70 gallons of gasoline, which the two men poured throughout the house, equals the explosive power of 1500 sticks of dynamite. Gas fumes can ignite before the liquid gas does, from as far as 12 feet away, even by static electricity. Once the vapors ignite, the temperature of the fireball is 15,000 degrees, and the ignited gasoline travels along the path that has been poured.)

Pfingst, his tone pleadingly sarcastic, asked the jury why Kurtenbach would send Joe, a kid he loved like his own son, to do a deed in which 70 gallons of gas would explode the moment he dropped the match? “It makes no sense.”

Khalil instructed the jury that since Kurtenbach knew the dangers of gas vapors in an enclosed space and had told Joe to go inside and start the fire, then malice had been implied, if not guaranteed.

Kurtenbach could have told Joe to start the fire from a safe distance. But he didn’t. Because Kurtenbach was a gas man, he knew that if Joe got close — opened the back door, stepped inside, lit the match — he’d be killed.

The Verdict

On October 12, 2010, the jury returned its verdict. Kurtenbach was found guilty of the felony charges of vandalism, conspiracy to commit arson, using an accelerant, and arson causing great bodily injury. He was also convicted of workers’ compensation, insurance, and tax fraud. These charges were dismissed, however, on condition that Kurtenbach and his ex-wife file bankruptcy and reorganize the Stars petroleum business so that creditors might eventually get some of their money.

On the charge of second-degree murder, the panel deadlocked 7-5 in favor of conviction.

One of the seven jurors, voting for the murder charge, said that Kurtenbach “has been around gasoline, and he’s owned his own gas companies for years. How could he not realize there was a possibility of somebody dying in the fire?”

Though the prosecution agreed with this juror, the district attorney’s office elected not to retry Kurtenbach on the murder charge. Judge Exarhos gave him the maximum penalty he could — 15 years and eight months in a California penitentiary.

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Comments

Visduh Oct. 8, 2011 @ 4:17 p.m.

This is one miserable story. I followed some accounts of the case, and the trial, but didn't pick up on the testimony that the house had been doused with 70 gallons of gasoline. While I claim no great expertise in the matter, it is a well-known fact that gasoline vapor mixed with air is highly combustible and explosively so. That, duh, is what makes it such a great motor fuel. Ignite the mixture and the rapidly expanding gas slams that piston down the cylinder. A house fire could be started very effectively, I'd guess, with as little as a half gallon of the stuff. That gasoline-saturated house was an explosion chamber ready to blow the house apart and send a fireball out hundreds of feet. It is a wonder that nobody in the neighborhood smelled the vapor. Even a cupful spilled in a station stinks up the whole area as it vaporizes.

Did Pfingst get him off the murder charge? Maybe. But he didn't keep the creep out of prison. Pfingsty isn't doing so well these days as a defense attorney. He's had some other cases that didn't go the way he hoped. And whose name crops up here but good ol' Kerry Steigerwalt, defense attorney to the guilty as sin.

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SurfPuppy619 Oct. 8, 2011 @ 8:47 p.m.

According to the autopsy, the pressure wave of the explosion ruptured his capillaries and bled “into the lung spaces”: his lungs “super expanded and leaked.” (This is how the medical examiner knew Joe had struck a match near the gas vapors: the close force of the blast had burst his lung tissue.) Joe had dressed in shorts and T-shirt, a sweater, and sneakers. He’d struggled, choking on his final breaths — his nose and throat filled with soot, his hair singed off, one hand “degloved” of its skin, his face blistered by “droplets of burning fluid,” his liver lacerated by the force of being catapulted away from the back door — his charred naked body left with only the collar ring of his T-shirt around his neck, his socks, and the remnants of a tennis shoe on one foot. == That is about as painful a death one could imagine. I have been burned veyr good on my arm, 4 inches and it was intesne pain, unbearable-this guy-what the hell was he thinking.

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Visduh Oct. 9, 2011 @ 10:26 a.m.

Another thought: John the brother is "a Catholic", and was fingering his rosary beads for a couple hours after the fire was ignited. Too bad he didn't adhere to the church's teachings about avoiding sinful behavior. He might have also saved his brother's life.

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OttoB Oct. 11, 2011 @ 5 p.m.

I certainly agree with Visduh that this was a 'miserable' story. A genuinely sad affair with not a single 'winner' anywhere near any part of it. I followed it to some degree during its progression, but I had no clue as to the magnitude or gruesomeness of all the circumstances.

Firstly, the notion the jury couldn't totally agree on the 'murder' charge scares me, At least in the sense that if ever there was a case to put a guy in prison for a long long time, this was one of them. Having one of your minions (a young, naive, loyal one at that) do your 'dirty work' so you can not only appear 'clean', but also ultimately counting on coming out the other side more 'whole', is as cosmically immoral as any. No amount of legal argument or rhetoric can supersede the actual 'truth' in such a matter. Steigerwalt & Pfingst should ALMOST be ashamed of themselves.

This story also isn't about a 'mistake' made by a seeming desperate man attempting to fix some wrongs in his life by questionable means. We have to get past this notion that everybody is ultimately good and that they just screw up sometimes. This is a guy who systematically never could get enough or take enough from the world around him. He always wanted more. Apparently at any cost. He had become what they call a 'benevolent dictator'. He might 'give', but only as much as he had to. The ultimate goal is him getting what he wants and, simply, he knows it won't necessarily come free. The minions might get a crumb or two - just enough to keep them hanging on - but in the end it is he that gets the whole loaf (and sadly, believes he's the only one entitled to it).

Finally - overlooking the perverse reality of it - I use stories like this to vividly teach my children about the evils of the world. The simple fact of the matter is real evil does exist. And you don't have to have any 'religious leanings' to know and believe that. It's personified flawlessly (ironically) in guys like Kurtenbach. He is truly evil. His real intentions may have been muddied up by a 'hung jury', but the truth is he never had any intention of owning up to his life's mistakes the proper way and take his lumps like honest, respectable people might. He wanted all of his bad decisions to be cured quickly and by a simple, expedient means that would cost him very little, but produce serious relief from his self imposed 'prison' of debt. It doesn't appear he gave any 'serious' consideration to solving his problems the usual way a legitimate business might in, say, declaring bankruptcy etc. He wanted it only on his terms and his way and with his own 'hopes and dreams' being the sole arbiter of the righteousness of it all. I would bet dollars to donuts that if you asked him today if he has any regrets or believes he was truly in the wrong, he would say "no way".

The good news is at least now his 'prison' has four walls.

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