FOREST LAKE (WCCO) — A Forest Lake firefighter has pleaded guilty Tuesday to wildfire arson in the April 6, 2009 fire that burned more than 1,500 acres in and around the Carlos Avery Wildlife Refuge north of the Twin Cities.
The Anoka County Attorney’s Office says John David Berken will be sentenced to serve up to 120 days in jail and will be on probation for up to three years. Lastly, he’ll have to pay restitution in the amount of $50,000 to $70,000. His sentencing is scheduled for March 24, 2011.
The criminal complaint said witnesses saw a man appearing to set a fire by launching fireworks out of the passenger window of his car window into a ditch. The witness called 911 and was able to give police both a license number and description of the man.
Sheriff’s deputies traced the car’s license plate to Berken, court documents said. Investigators found fireworks in Berken’s home and an explosive sniffing dog detected residue on Berken’s car window and his fire gloves.
Berken was arrested as he helped fight the blaze, which forced some people to evacuate their homes but didn’t destroy any buildings.
Berken is a decorated firefighter who has been with the Forest Lake department since 2005. In 2006, he and three other firefighters were honored for rescuing a snowmobiler in the St. Croix River.
In 1991, records show he was convicted of calling the Flying Cloud Airport in Eden Prairie, adopting a Middle Eastern accent and threatening to blow it up.
In a separate incident, he allegedly contacted an airport traffic control tower and told controllers that the pilot of his aircraft had a heart attack and that he needed help landing the plane.
Investigators searched his apartment and found a radio transmitter and other equipment. He was sentenced in federal court to a year in prison for making false radio transmissions.
Court records also indicate Berken has several check-forgery and theft convictions and served about 20 months in prison in the mid-1990s.
Sommer said Berken, who owned a now-closed car dealership in Forest Lake, was also known to appear at competitors’ businesses dressed up like a police officer in tactical clothing with a duty belt, although he wasn’t armed. Sommer said Berken never actually claimed to be an officer, however.
The city of Forest Lake sent out a statement, saying that in 2005, Berken applied to be a volunteer firefighter and underwent a background check, which revealed his prior convictions. Because of this, he was not hired. But he appealed that decision to the then-mayor, who directed that Berken be hired under an extended probationary period, which ended in 2008.
Former Mayor Terry Smith said that he made the right decision at the time.
Berken’s Lawyer Responds
Berken still adamantly denies he set that fire, according to his lawyer, Marsh Halberg. Halberg told WCCO-TV reporter James Schugel Tuesday night that the defense felt it could have won a trial.
In fact, Halbeg said that it took a great deal of restraint by Berken not to push the matter to trial, to ensure the best possible results for his life and family. However, if Berken had been convicted, the state was seeking an upward sentencing departure to send him to prison.
Tuesday’s settlement was a conviction under an “Alford plea,” Halberg said, where a defendant maintains his innocence, but acquiesces to a conviction being entered recognizing that a jury could believe the State’s version of the evidence.
Under the plea, he can serve a maximum of 77 days in jail with 60 hours of work release per week. This allows him to maintain his employment and preserve his family’s security, Halberg said.
Also under the negotiation, at the end of three years, the case will be deemed a misdemeanor, not a felony.
Berken also agreed to restitution between $50,000 and $78,000. This is from the practical standpoint that, as Halberg explained, even if Berken won the criminal case, he could be sued civilly by others claiming he started the fire. He would have to incur the costs of hiring a civil defense lawyer, in that case, and again through all the stress and time of that litigation for another couple of years.
Under this negotiation, he can have a global settlement to move on with his life, Halberg said.
Halberg also said that his client does not dispute his prior criminal convictions. But he does maintain his client was set up in this case, and he said there are several reasons why.
For one, Halberg said there were 15 arson/suspicious grassland fires within just a few miles, within 15 days of the fire in question. Berken, he said, was not a suspect in any of them and was at other locations during them.
Halberg also said the concept of shooting fireworks out of a moving car, as some state witnesses say they saw happen, is from the defense’s experts, “preposterous.” Halberg said this would require a person to drive down the road, lean across a very wide car, stick a mortar style firework out the passenger window, and somehow light it and accurately shoot it into grassland, where it had just snowed the day before, and light a fire.
Berken was a firefighter, who routinely carried fire gear in his car, and the defense claimed it had numerous witnesses who would have testified at a trial that a day before the fire, he had been shooting off fireworks a few feet from his car. This would explain why, Halberg said, the State said it found explosive residue on Berken’s inside passenger door.