New information delays sentencing for owner, found guilty of arson
Attorneys for Tom Calkins, the former Burlingame Grocery owner convicted of arson, are seeking a new trial on grounds that there were flaws in the verdict and insufficient evidence.
One of the attorneys, Pat Birmingham, said firefighters should not have been considered among the people 'recklessly' placed at risk in the arson fire. A Multnomah County Circuit Court jury convicted Calkins on the charge of setting fire to his store and endangering firefighters and others.
'Virtually all fires create a risk of physical injury to firefighters,' the court document says. 'Thus, to include firefighters within the scope of (the law) would render meaningless the crime of arson in the second degree.'
Circuit Judge Linda Bergman had rejected a similar motion regarding firefighter endangerment early in Calkins' trial.
'The judge has already heard and ruled on this very issue,' said Deputy District Attorney Eric Bergstrom.
In another twist to the 2-year-old case, Calkins' sentencing Tuesday was postponed indefinitely to allow his attorneys to pursue a new witness and evidence related to the fire on Sept. 18, 2001.
Defense and prosecuting attorneys met in Bergman's office for 40 minutes before emerging to say that the sentencing would be delayed.
An elated Calkins smiled as he approached his supporters in the courtroom to tell them the news. His older brother Bob, son Mike, and half a dozen friends and family members attended the hearing.
'It's good news for us,' said Calkins, who is free pending sentencing. Bergman scheduled an Aug. 14 status hearing on the case.
His wife, Jackie, smiled as she left the courtroom but would not comment.
The new information emerged after the arson trial concluded June 19, Birmingham said. Two investigators in his office are looking into it, he said.
'We're still in the process of developing these things,' he said.
Sources said a new witness may have information about where Calkins was the night of the fire.
Prosecutor Bergstrom, however, challenged the assertion, saying there's 'no new information, no new witnesses' related to the fire.
Calkins faces a minimum 7 1/2 years in state prison after being convicted of burning down his specialty store on Southwest Terwilliger Boulevard. The store was insured for almost $1 million, and Calkins is still involved in a civil suit with his insurer, Grocers Insurance Group.
The jury convicted Calkins largely based on a security videotape that showed a person resembling Calkins and on the fact that he had access to the store.
Criminal defense attorney Richard Wolf, who is not involved in the Calkins case, said Calkins' attorneys would not have filed the motion for a sentencing delay without strong evidence.
'They must have something that they believe would have changed the outcome of the trial and could not have been available to them,' he said. 'This is usually newly discovered evidence or something (that) through due diligence you could have not discovered. It's not a routine motion.'
Jack Raiton, a senior fellow at the Oregon Graduate Institute School of Science & Engineering and a friend of Calkins', was scheduled to testify Tuesday on his behalf. He said Calkins 'is pretty confident he will prevail. It's an injustice, but he continues to have faith in the justice system. Tom's never been in this kind of trouble.'