Convicted of Starting Deadly Fire with Unburnable Substance

- The Mark Kirk Story

By Mark Kirk

Edited by Clara A.T. Boggs, JD Editor in Chief

Justice:Denied magazine, Issue 26, page 8

My 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 burner also.
 

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.
 

Once outside, 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. 

The Confession

When 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 burning.
 

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 attorney.

70-Proof Rum Wonít Burn

Prior 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 tape.
 

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.
 

Dr. Broskeyís 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 open flame.
 

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 electric stove.
 

There was 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)?
 

I 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 building requirements.
 

A corrections 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 towards.
 

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 for me.
 

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.
 

On 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.

I 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,

Mark Kirk #291259
Delaware Correctional Center
1181 Paddock Rd
Smyrna, DE 19977


My mother is my outside contact:
Virginia Kirk
156 Flamingo Dr.
Newark, DE 19702