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.
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.