Case 1:06-cv WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 1 of 110

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 1 of 558 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2 Civil Action No. 06-cv-01135-WYD-MJW 3 ALLSTATE INSURANCE COMPANY, GARY BIESKE, SANDRA BIESKE; LAURIE 4 GLAUTH, as Trustee of The Zelma Worden Trust; LAURIE GLAUTH, individually; HARTFORD FIRE INSURANCE COMPANY; HARTFORD 5 UNDERWRITERS INSURANCE COMPANY; CHARLES PHILLIPS, as trustee of The Phillips Family Trust I; Charles Phillips, individually; 6 MARCIA PHILLIPS; PROPERTY AND CASUALTY INSURANCE COMPANY OF HARTFORD; STATE FARM FIRE AND CASUALTY COMPANY, INC.; WALLACE 7 WHITE, 8 Plaintiffs, 9 vs. 10 UNITED STATES OF AMERICA, 11 Defendant. Civil Action No. 06-cv-01207-WYD-MJW 12 13 INTERSTATE FIRE & CASUALTY COMPANY, 14 Plaintiff, 15 vs. 16 UNITES STATES OF AMERICA, 17 Defendant. 18 Civil Action No. 06-cv-01602 19 GARY BIESKE, SANDRA BIESKE; LAURIE GLAUTH, as Trustee of The Zelma Worden Trust; LAURIE GLAUTH, individually; CHARLES 20 PHILLIPS, as trustee of The Phillips Family Trust I; Charles Phillips, individually; MARCIA PHILLIPS; WALLACE WHITE, 21 22 Plaintiffs, 23 24 Proceeding Reported by Mechanical Stenography, Transcription Produced via Computer by Kara Spitler, RMR, CRR, 25 901 19th Street, Denver, CO, 80294, (303) 623-3080

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 2 of 559 1 vs. 2 UNITED STATES OF AMERICA, 3 Defendants. 4 5 6 REPORTER'S TRANSCRIPT TRIAL TO COURT, DAY 5 7 8 9 Proceedings before the HONORABLE WILEY Y. 10 DANIEL, Judge, United States District Court for the District of 11 Colorado, commencing at 9:28 a.m., on the 12th day of 12 September, 2008, in Courtroom A1002, Alfred A. Arraj United 13 States Courthouse, Denver, Colorado. 14 APPEARANCES 15 MICHAEL ROCHE and KEITH RAY, Lathrop & Gage, 16 370 17th Street, Suite 4650, Denver, CO 80202-5607, for State 17 Farm plaintiffs. 18 EDWIN WITT, Bauman Loewe Witt & Maxwell, PLLC, 19 8765 East Bell Road, Suite 204, Scottsdale, AZ 85260, for 20 Hartford plaintiffs. 21 THOMAS DUNFORD, Cozen & O'Connor, 707 17th 22 Street, Suite 3100, Denver, CO 80202-3400, for Allstate and 23 Interstate plaintiffs. 24 ROBERT JONES, 219 West Colorado Avenue, Suite 25 210, Colorado Springs, CO 80903, for individual plaintiffs.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 3 of 560 1 WILLIAM PHARO and TERRY FOX, Assistant United 2 States Attorneys, 1225 17th Street, Suite 700, Denver, CO 3 80202, for defendant. 4 WARREN WILLIAMSON, Assistant Federal Public Defender, 633 5 17th Street, Suite 1000, Denver, CO 80202, for. 6 P R O C E E D I N G S 7 (In open court at 9:28 a.m.) 8 THE COURT: You may be seated. 9 All right. That is continuation of the trial, is 10 trial of State Farm Fire and Casualty and others versus the 11 United States of America. 12 All right. Since the defendant rested, today, as I 13 understand it, the plaintiff wishes to present a rebuttal case, 14 and you have one witness to call. 15 MR. ROCHE: Yes, Your Honor, plaintiffs call Terry 16 Barton. 17 THE COURT: Mr. Williamson, I just got the affidavit 18 that was submitted. 19 Is it the only copy, or is this a copy for me? 20 MR. WILLIAMSON: That's the only copy. I took that 21 off the Court's web page. 22 THE COURT: Let me give this back to you. I have no 23 philosophical or practical difficulty appointing you, but I 24 think this needs, needs to be submitted to Miss Stephanie 25 Matlock, and she needs to attach this to a motion for

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 4 of 561 1 appointment of counsel or whatever. There's a procedure that 2 we follow. And once that is re-presented to me, if she 3 recommends it, normally I will approve it. So I don't foresee 4 a problem. 5 MR. WILLIAMSON: I'm not soliciting the appointment. 6 I'm here as an officer of the court. If I am appointed, I will 7 be happy to represent the witness. But if there's going to be 8 consideration of the motion and appointment of counsel that's 9 going to be considered as a later point, given the issues I see 10 at hand here again as an officer of the court, I believe that 11 the testimony of Miss Barton should be delayed until counsel is 12 appointed. 13 THE COURT: I'm not going to address that without 14 hearing from counsel for the parties because this, this matter 15 was set for trial. We were in the middle of the trial, and 16 Miss Barton had been listed as a may-call witness by, I think, 17 the government. And then based on some comments that the Court 18 made several days ago, the plaintiff decided to subpoena her. 19 So let me clarify that, Mr. Roche. 20 MR. ROCHE: Plaintiffs have no objection to the 21 appointment of Mr. Williamson as Miss Barton's counsel for 22 these proceedings. 23 THE COURT: I don't have any problem for that, either. 24 I just want to make sure that we're following all the right 25 paperwork.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 5 of 562 1 Mr. Williamson, are you prepared to proceed today? 2 MR. WILLIAMSON: I am, Your Honor. 3 THE COURT: All right. Why don't we do that, then. 4 All right. Let's bring the witness in. 5 MR. WILLIAMSON: If it please the Court, I can get the 6 witness from the witness room. 7 THE COURT: All right. Thank you. 8 MR. WILLIAMSON: Your Honor, if it please the Court, 9 since my position here today is to consider whether any of the 10 responses to questions posed by counsel might tend to 11 incriminate Miss Barton, with Your Honor's permission, may I be 12 at the witness stand next to her? 13 THE COURT: Any objection from counsel? 14 MR. ROCHE: No objection from the plaintiffs, Your 15 Honor. 16 MR. PHARO: None. 17 THE COURT: Then, Mr. Williamson, you may sit close to 18 your client. 19 MR. WILLIAMSON: Thank you, Your Honor. 20 THE COURT: All right. Let's have the witness sworn. 21 THE COURTROOM DEPUTY: Please raise your right hand. 22 (TERRY BARTON, PLAINTIFFS' WITNESS, SWORN) 23 THE COURTROOM DEPUTY: Please be seated. 24 Please state your full name and spell your full name 25 for the record.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 6 of 563 1 THE WITNESS: Terry Lynn Barton, T-E-R-R-Y, L-Y-N-N, 2 B-A-R-T-O-N. 3 DIRECT EXAMINATION 4 BY MR. ROCHE: 5 Q Good morning, Miss Barton. My name is Mike Roche, and I'm 6 one of the attorneys representing the plaintiffs in this case. 7 A Good morning, sir. 8 Q You've just taken an oath to tell the truth. Do you 9 understand that? 10 A Yes, sir. 11 Q And that is the same oath that you took before Judge Matsch 12 back in 2002? 13 A Yes, sir. 14 Q And you understand if you testify falsely here today, you 15 could be prosecuted for perjury? 16 A Yes, sir. 17 Q You also understand that if you testified falsely before 18 Judge Matsch in 2002, you could be prosecuted for that as well. 19 A Yes, sir. 20 MR. WILLIAMSON: Excuse me just a moment, Your Honor. 21 Go right ahead. 22 MR. ROCHE: Thank you. 23 MR. WILLIAMSON: I think that's beyond the statute of 24 limitations. 25 MR. ROCHE: Okay. Thank you.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 7 of 564 - Direct 1 BY MR. ROCHE: 2 Q Miss Barton, have you discussed your testimony here today 3 with anyone other than Mr. Williamson or somebody else from the 4 public defender's office? 5 A No, sir. 6 THE COURT: Miss Barton, let me have you move a little 7 closer to the microphone, if you would. The chair will move. 8 Just keep your voice elevated. 9 BY MR. ROCHE: 10 Q And I understand you have not been offered immunity from 11 prosecution in exchange for your testimony here today. 12 A No, sir. 13 Q Are you willing to talk with us about the events of June 8, 14 2002? 15 A That depends on what the question is, sir. 16 Q Well, Miss Barton, you pled guilty to starting what became 17 known as the Hayman fire? 18 A Yes, sir. 19 Q In the black book in front of you is Exhibit 33, a copy of 20 your plea agreement. 21 A Yes, sir. 22 Q And go ahead, take a minute to review that, if you would, 23 and if you have to discuss with your counsel, feel free to do 24 so. 25 THE COURT: Just so the witness and Mr. Williamson are

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 8 of 565 - Direct 1 aware, this Exhibit 33 has previously been received in evidence 2 for purposes of this trial. 3 MR. WILLIAMSON: Thank you, Your Honor. I appreciate 4 that. 5 THE COURT: And the document is plea agreement and 6 statement of fact relevant to sentencing in criminal case 7 02-CR-255, entitled United States of America vs. Terry Lynn 8 Barton. 9 THE WITNESS: Yes. 10 BY MR. ROCHE: 11 Q Is that your signature at the end of the plea agreement 12 where it says Terry Lynn Barton, defendant? 13 A Yes, sir. 14 Q Let me direct your attention to page 10 of the plea 15 agreement? 16 MR. WILLIAMSON: With Your Honor's permission, I'll 17 assist the witness. 18 THE COURT: Yes, you may. 19 MR. WILLIAMSON: Thank you. 20 BY MR. ROCHE: 21 Q Have you got that, Miss Barton? 22 A Yes. 23 Q In the plea agreement, it provides, She -- meaning you -- 24 stated she crumpled the letter from her husband, placed it in 25 the campfire ring, and lit it with a match.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 9 of 566 - Direct 1 Do you see that? 2 A Yes, sir. 3 Q Is that what happened the afternoon of June 8, 2002? 4 A Yes, sir. 5 Q On that same page of the plea agreement, it provides, 6 She -- meaning you -- stated she watched the letter burn and 7 watched the flames from the letter in the campfire ring burn to 8 extinction. 9 Do you see that? 10 A Yes, sir. 11 Q Is that, in fact, what happened on June 8, 2002? 12 A Yes, sir. 13 Q On this same page of the plea agreement, in the next 14 paragraph, it provides, Miss Barton indicated she then returned 15 to the Forest Service truck she was driving, drove it 16 approximately two-tenths of a mile west on forest road 290, 17 turned around, and proceeded back eastbound on forest road 290. 18 Do you see that? 19 A Yes, sir. 20 Q Is that, in fact, what you did on the afternoon of June 8, 21 2002? 22 A Yes, sir. 23 Q The agreement goes on to provide that upon passing the 24 campfire ring, Miss Barton stated she observed a fire emanating 25 from the campfire ring which was sweeping north towards the

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 10 of 567 - Direct 1 trees in the forest. 2 Do you see that? 3 A Yes, sir. 4 Q Is that, in fact, what happened the afternoon of June 8, 5 2002? 6 A Yes, sir. 7 THE COURT: The Court has a question here. 8 Miss Barton, looking at what's in the plea agreement, 9 can you tell the Court how much time elapsed, the best of your 10 present recollection, between when you entered the Forest 11 Service truck, drove it approximately two-tenths of a mile west 12 on forest road 290, turned around and proceeded back eastbound 13 on forest road 290, and then returned to the area of the 14 campfire ring. 15 THE WITNESS: I'm not for sure, Your Honor. It's been 16 so long, I can't remember exactly the amount of time. 17 THE COURT: Okay. I don't want you to guess. I'm not 18 asking you to guess. 19 Do you have any sense of whether or not it was more 20 than an hour, less than 30 minutes, more than 5 minutes? Is 21 there any way you can approximate it, to the best of your 22 ability? 23 THE WITNESS: It was probably more in the five-minute 24 range, Your Honor. 25 THE COURT: Okay. Five-minute range.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 11 of 568 - Direct 1 And what caused you to drive away and then what caused 2 you to come back, to the best of your recollection? 3 THE WITNESS: I was emotionally a mess that day, and I 4 knew I couldn't deal with the public, so I was turning around 5 to go back out, Your Honor, to go back out to the main street 6 to head to my office. 7 THE COURT: But then what caused you to turn back 8 around and go back to the campfire site? 9 THE WITNESS: The shortest way out, Your Honor. It 10 was -- the Forest Service roads, they go -- I mean, they wind a 11 different way, and that was the shortest way out to the main 12 highway. 13 THE COURT: I see. So when you turned around and went 14 back, it really had nothing to do with any fire or anything you 15 smelled or anything like that? 16 THE WITNESS: No, Your Honor. 17 THE COURT: And when you got back to the area of the 18 campfire site, what exactly did you then observe? 19 THE WITNESS: That where I burned the letter, that 20 the -- the grass was on fire and that it was burning pretty 21 fast. And I, I called it in. 22 THE COURT: All right. So I just want to make sure I 23 understand what you're saying. 24 So when you left, you were emotional, and then you 25 wanted to leave the quickest way possible, so you went one way,

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 12 of 569 - Direct 1 but you decided coming back another way would allow you to get 2 out of the campground area the quickest? 3 THE WITNESS: Yes, Your Honor. 4 THE COURT: Upon your return, when you backtracked 5 your steps, that's what you told me meaning that the -- had the 6 fire escaped the campfire ring at that time? 7 THE WITNESS: Yes, Your Honor. 8 THE COURT: Okay. 9 And to the best of your recollection, how far had the 10 fire traveled, when you first saw it? 11 If you know. 12 THE WITNESS: I'm not -- maybe 10-by-8. I'm not for 13 sure, Your Honor. 14 THE COURT: And if there's something in this plea 15 agreement that refreshes your recollection, take a minute to 16 read it. I mean, go ahead and read some more of this, if you 17 would, if there's anything else in there that helps refresh 18 your recollection. 19 Although I don't think it's in here. 20 MR. WILLIAMSON: I don't see it. 21 THE COURT: All right. 22 All right. I'll turn it back to you, Mr. Roche. 23 MR. ROCHE: Thank you, Your Honor. 24 BY MR. ROCHE: 25 Q Miss Barton, on the afternoon of June 15, 2002, you did a

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 13 of 570 - Direct 1 videotape at the request of Special Agent Jones -- who has a 2 cell known? I just heard a cell phone. Whose cell phone did I 3 hear? 4 Show your hand. 5 I just heard a cell phone. 6 Gentleman in the front row, is that your cell phone? 7 All right. Because you were reaching down. 8 I hear a cell phone, and we're in court. I have a 9 sign out there that says no cell phones, no pagers. If it goes 10 off again, I'm going to take it and you won't get it back. So 11 whoever's cell phone goes off, you better make sure you turn it 12 off so it doesn't make a noise. 13 If I hear another cell phone, I'm going to confiscate 14 it. If you have a cell phone or pager, you better turn it off. 15 Restate your question, because we got interrupted by 16 that noise. 17 MR. ROCHE: Sure, no problem. 18 BY MR. ROCHE: 19 Q Ms. Barton, on the afternoon of June 15, 2002, you recall 20 doing a videotape at the request of Special Agent Jones and 21 Special Agent Luke Konantz? 22 A Sir, I don't remember the date. That's -- 23 Q I'm sorry. That's a fair -- that's a fair point. It was a 24 while ago. 25 You recall admitting starting the Hayman fire, do you

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 14 of 571 - Direct 1 not? 2 A Yes, sir. 3 Q And you did that at the area of origin of the Hayman fire? 4 A Yes, sir. 5 Q And it was on or about June 15, 2002, a week or so after 6 the fire? 7 A Yes, sir. 8 Q After you admitted to Special Agent Jones that you had 9 started the Hayman fire by lighting a letter from your 10 ex-husband, Agent Jones asked you if you would do a videotape. 11 Do you recall that? 12 A Yes, sir. 13 Q I'd ask you to take a look at Exhibit 17 in the black book. 14 And just let me know when you're ready. 15 A Yes, sir. I glanced through it. 16 Q Okay. I'd like to direct your attention to page 5 of this 17 transcript. And I'll represent to you, this is a transcript of 18 that videotape on June 15, 2002. 19 MR. WILLIAMSON: Excuse me for interrupting, Your 20 Honor. This is in evidence? 21 THE COURT: It's in evidence. 22 MR. WILLIAMSON: Thank you. 23 THE COURT: And just so Miss Barton and you are aware, 24 there was a video played of the alleged confession which bore a 25 date of June 15, 2002. And this exhibit, Exhibit 17, is the

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 15 of 572 - Direct 1 transcription of what was contained on the videotape. So the 2 Court previously saw the videotape, and 17, which was received 3 in evidence, is a transcript of what was said on the videotape. 4 MR. WILLIAMSON: Thank you, Your Honor. 5 I don't know if there's a question pending. 6 MR. ROCHE: I just wanted to make sure you guys were 7 ready. 8 BY MR. ROCHE: 9 Q Miss Barton? 10 A I've looked at it, sir. 11 Q Thank you. 12 You had admitted to starting the Hayman fire to Agent 13 Jones before this videotape was done, had you not? 14 A Correct, sir. 15 Q Now, as the Judge asked you, one of the issues in this case 16 is where the fire was when you got back to the area of the 17 campfire ring. And in the videotaped confession, you said, The 18 fire wasn't torching at the time you got back, it was moving, 19 but it wasn't torching. 20 Do you see that in the top half of the page? 21 A Yes, sir. 22 Q That's a true statement, isn't it? 23 A I believe so, sir. It's been -- it's been a while. 24 Q Your recollection was certainly better on June 15 of 2002 25 than it is today?

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 16 of 573 - Direct 1 A Yes, sir. 2 THE COURT: Well, let me just ask this question, since 3 I have to decide this case. 4 The entire answer, which is noted on page 5 is, quote, 5 It wasn't torching at the time. It was moving, but it wasn't 6 torching. It was, hmm, it wasn't in the trees. It was in the 7 duff in the ground. It was the grass there. I don't even 8 remember it in any grass. The grass had to have been gone. It 9 was in that duff. It was moving. 10 Now, do you now recall whether or not what you said 11 here is accurate? I mean, do you have any recollection of 12 whether or not this is accurate to the best of your 13 recollection? 14 THE WITNESS: Yes, Your Honor, I believe at that time 15 it was -- it wasn't in the trees at that time. 16 THE COURT: How far was the fire away from the trees 17 to the best of your ability to remember that? 18 THE WITNESS: The best I can remember it, there's -- 19 trees were around there, but it wasn't into the branches. It 20 was down by the bark area, the trunks. 21 THE COURT: Okay. 22 What did you do next after you got there and you saw 23 that this fire was proceeding toward the trees, but it hadn't 24 reached the trees? Do you remember what you did or didn't do? 25 THE WITNESS: I tried calling it in.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 17 of 574 - Direct 1 THE COURT: Okay. And was that a successful effort? 2 THE WITNESS: No, Your Honor. 3 THE COURT: And who were you attempting to call? 4 If you remember. 5 THE WITNESS: Pueblo dispatch. 6 THE COURT: Okay. And the call didn't go through or 7 what happened? 8 THE WITNESS: No, sir. They were doing the weather at 9 that time. 10 THE COURT: Okay. 11 So what did you do next? 12 THE WITNESS: I tried to use my cell phone. 13 THE COURT: Okay. 14 And who were you attempting to call? 15 THE WITNESS: The Lake George office. 16 THE COURT: And did you reach the Lake George office? 17 THE WITNESS: No, I didn't have any service. 18 THE COURT: So what did you do next? 19 THE WITNESS: I waited for the weather to get a break. 20 And I called back in. 21 THE COURT: Okay. 22 How much time elapsed between when you made the first 23 two calls and the weather broke and you made another call, if 24 you know? 25 THE WITNESS: I couldn't really tell you the time,

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 18 of 575 - Direct 1 sir, I'm not for sure. 2 I'm thinking it could have been a minute, minutes. 3 I'm not for sure, Your Honor. 4 THE COURT: So it would have been a matter of minutes, 5 even if you can't recall how many minutes? 6 THE WITNESS: Yeah. 7 THE COURT: Okay. Okay. 8 Now, one of the things I want you to do your best to 9 remember is what specific steps did you take to stop the spread 10 of the fire when you first encountered it? 11 THE WITNESS: If I remember right, Your Honor, after I 12 was able to call someone in and report it, I went to try to 13 fight it with a shovel. And my -- one of my bosses called, I 14 think it was Mike Hessler, they ordered for -- and I'm not for 15 sure on this, Your Honor. They needed a legal. And so I had 16 to go back to my truck to get a legal. And by that time, when 17 I turned around, I believe it was in the -- torching in the 18 trees. 19 THE COURT: Okay. Can you recall to the best of your 20 ability what specific steps you actually took to suppress the 21 fire? 22 THE WITNESS: Like I said, it's been a while, Your 23 Honor. But I remember I had my uniform on, and I had to get my 24 Nomex on. So I proceeded in getting my Nomex on. Went over 25 there, noticed it was in the trees already. I started trying

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 19 of 576 - Direct 1 to put it out. I walked in front, in front of it to see how 2 far it is. And then I heard the first engine coming. And when 3 the first engine arrived, I flagged off. 4 THE COURT: And Nomex is a protective gear of some 5 sort that you put on, is that what you put on, just so I know 6 what you're talking about? 7 THE WITNESS: Yes, Your Honor. 8 THE COURT: Again, I just want you to remember what 9 you remember. 10 Before you put the Nomex on, did you make some efforts 11 at that time to suppress the fire with your shovel or anything 12 else? 13 THE WITNESS: I'm -- I'm just going to -- I would be 14 guessing, Your Honor. I think I did, but I mean, I'd be 15 guessing, so I'm going to be honest and say I can't remember. 16 THE COURT: I'm going to stop asking questions and 17 turn it back to Mr. Roche here. 18 BY MR. ROCHE: 19 Q If I understand the answers that you gave in response to 20 Judge Daniel's questions, you said that the fire didn't start 21 torching in the trees until after you had already tried to put 22 the fire out and then gone back to your truck and called the 23 legal description in; is that right? 24 A I'm not for sure if it was all in that, that -- the way 25 that you lined it up, sir. I remember -- like I said, it's

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 20 of 577 - Direct 1 been a while. I remember calling -- trying to call it in, 2 fighting it, or trying to compress it, and then asking to give 3 a legal. So I had to walk away at that time to give them a 4 legal. 5 Q And in page 6 of Exhibit 17, which is that videotaped 6 confession.... 7 Have you got that in front of you? 8 A Yes, sir. 9 Q In that videotaped confession, you said, I was trying to 10 put the fire out, and then when they told me I had to get a 11 legal, it's when I went back, walked to the truck, pulled the 12 map out, got a legal. That's when it torched. That's when I 13 put my Nomex on, came back, and there was nothing I could do at 14 that time, not without water and not myself. 15 Do you see that? 16 A Yes. Yes, sir. 17 Q And is that what you said on June 15? 18 A Yes. 19 Q And is that an accurate description of what you did on 20 June 15? 21 Or on June 8, I'm sorry. 22 A The best I can remember, sir, yes. 23 Q So as best you can remember, the fire didn't start torching 24 in the trees until after you went back to the truck and after 25 you called in the legal and after you put your Nomex on?

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 21 of 578 - Direct 1 A To the best I can remember, sir. 2 Q If you would take a look at page 3 of Exhibit 17, 3 Miss Barton. 4 MR. WILLIAMSON: Pardon me, what page? 5 MR. ROCHE: Exhibit 17. It's the same document. 6 THE COURT: I think he said page 3. Is that what you 7 said counsel? 8 MR. ROCHE: Correct. I'm sorry. 9 THE COURT: All right. 10 THE WITNESS: Yes, sir. I see it. 11 BY MR. ROCHE: 12 Q At the top of page 3 of the videotaped confession, one of 13 the things that you said was you watched the letter burn and 14 then you go on to say, And I mean, when it -- when it was -- 15 when the paper was out, I didn't think, oh, you need to throw 16 dirt on here, you need to throw water. And then your answer 17 continues on, correct? 18 A Best I can remember, sir, yes. 19 Q And in fact, you didn't throw any dirt on that campfire 20 ring after you watched the letter burn, did you? 21 A Not that I remember, sir. 22 Q And you didn't put any water on the campfire ring after the 23 letter burned? 24 A Not that I remember, sir. 25 Q Farther down the page, about the middle of the page, it

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 22 of 579 - Direct 1 says, And then I went back to the truck. 2 Do you see that? 3 A Yes, sir. 4 Q And that's, in fact, what you did the afternoon of June 8? 5 A The best I can remember, sir. 6 Q And then in the next line of the videotaped confession, it 7 says, And I just drove. I don't even -- I didn't even look 8 back. 9 Do you see that? 10 A Yes, sir. 11 Q And that's, in fact, what happened on June 8, 2002. You 12 didn't even look back? 13 A Yes. Yes, sir, the best I can remember. 14 Q One of the questions that's been raised during the course 15 of this case is whether there really was a letter. So let me 16 just ask you: There was a letter from John Barton, wasn't 17 there, and that's what you burned in the campfire ring? 18 A Yes, sir, there was. 19 Q And that's what you told Judge Matsch when you entered your 20 guilty plea? 21 A Yes, sir. 22 Q And he accepted it, the guilty plea? 23 MR. WILLIAMSON: I guess that's a legal question. 24 MR. ROCHE: I'll withdraw it. 25 THE COURT: If that's an objection, it's sustained.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 23 of 580 - Direct 1 MR. WILLIAMSON: I didn't mean it to be. I don't 2 think she knows what "accepted" means. 3 BY MR. ROCHE: 4 Q Do you recall Judge Matsch going through the plea agreement 5 with you at your change-of-plea proceeding? 6 A Yes, sir. 7 Q And he asked, Did you burn a letter. 8 A I don't remember, sir. 9 Q Okay. 10 But there's no doubt in your mind there was a letter? 11 THE COURT: Well, let me ask this 'cause it's on the 12 Court's mind. 13 When did you get the letter in relationship to when it 14 was burned? 15 THE WITNESS: The best I can remember, Your Honor, is 16 I believe it was -- my husband just showed back up from being 17 in Arkansas. We had a argument. And anyway, I believe it was 18 the -- either two days before I went to work or that night 19 before. I'm not for sure. But it was within the time that he 20 arrived back to the house. 21 THE COURT: Okay. 22 And how did he give you the letter? 23 THE WITNESS: He just -- he handed it to me, and I put 24 it in my purse. It was kind of, just a letter saying that, you 25 know, that he was sorry kind of thing.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 24 of 581 - Direct 1 THE COURT: Did you read the letter? 2 THE WITNESS: Yes, sir, Your Honor. 3 THE COURT: And when did you read the letter in 4 relationship to when it was given to you? 5 THE WITNESS: Probably the day I found it, Your Honor. 6 THE COURT: Okay. 7 What was your reaction to the letter after you read 8 it? 9 THE WITNESS: Hmm. 10 It was -- I'd been married to this man for a while. 11 And I think when women get to a point where they've had enough, 12 they've had enough, and that's kind of where I was, I was where 13 I kind of had to get on with my life. And I had to have this 14 relationship over even though you still care for someone, but 15 you have to, you have to make a better choice. And so I was 16 just, I was through, is basically kind of what -- I was trying 17 to stand strong and say, I'm done, I'm done, I'm filing a 18 divorce, at that point. 19 THE COURT: Okay. 20 Just so I'm understanding what the letter said, what 21 did the letter say to you about whether or not your husband 22 agreed or disagreed with your desire to obtain a divorce? 23 THE WITNESS: It was just -- if I can -- for the best 24 I can remember, Your Honor, is it was just a letter of him 25 apologizing to me and a letter telling me that he would give me

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 25 of 582 - Direct 1 $500 a month for child support, that he agreed, that he wanted 2 to make it work, that if we could make it work, that he would 3 rather it work than me get a divorce, but whatever my wishes 4 were, that, you know, he would go along with it. 5 THE COURT: So why did you decide to go to the 6 campfire site and burn this letter? 7 THE WITNESS: I didn't -- it wasn't a decision to go 8 to -- I mean, it wasn't like a planned thing, Your Honor. 9 THE COURT: Well, why did you do it? 10 THE WITNESS: The night before, we got into -- like I 11 said, he showed back up. He was trying to withdraw from 12 alcohol and stuff. And we got into a verbal argument. It was 13 a verbal. And as I was driving, I went to my purse to get a 14 piece of gum, and I found the letter. And at that point, I was 15 just emotionally a mess. I haven't -- I didn't sleep. I was 16 work -- trying to work. Wasn't able to -- it was a symbolic 17 gesture, Your Honor. It was just, I'm through, I'm done with 18 this, I've got to go on with my life. 19 THE COURT: So I don't want to use a big word here, 20 but your desire to burn the letter just happened, and it wasn't 21 something you thought about for a long time before you did it? 22 THE WITNESS: No, Your Honor. 23 THE COURT: Why did you happen to pick the spot that 24 you burned the letter? If you know. 25 THE WITNESS: I don't think I can -- I didn't plan

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 26 of 583 - Direct 1 that, Your Honor. I don't know why it ended up being there. 2 THE COURT: Now, are you telling the truth about 3 everything you've said here in Court today? 4 THE WITNESS: Yes. 5 THE COURT: To the best of your knowledge and 6 understanding? 7 THE WITNESS: Yes, to my knowledge and understanding, 8 Your Honor. 9 THE COURT: Okay. 10 Mr. Roche, go ahead. 11 MR. ROCHE: Thank you. 12 BY MR. ROCHE: 13 Q Miss Barton, one of the questions the Judge asked is 14 whether you remember exactly when you got the letter from your 15 husband, John. And there's been a suggestion in this case that 16 you couldn't have gotten the letter the morning of June 8 17 because you spent that night at Stephanie Shively's house. 18 Do you recall -- and let me direct your attention to 19 Exhibit 30, if I could. 20 MR. WILLIAMSON: I'm sorry, I didn't hear that. 21 MR. ROCHE: Exhibit 30. 22 MR. WILLIAMSON: We're there. 23 MR. ROCHE: Okay. 24 BY MR. ROCHE: 25 Q Exhibit 30 is a memorandum of interview taken from a

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 27 of 584 - Direct 1 gentleman by the name of Robert Overstreet. 2 MR. PHARO: Your Honor, I don't think this has been 3 admitted. I could be wrong, but.... 4 THE COURT: Exhibit 30 has been received. 5 MR. PHARO: Okay. Sorry. 6 BY MR. ROCHE: 7 Q Have you got that in front of you, Miss Barton? 8 A Yes, sir. 9 Q Do you know who Robert Overstreet is? 10 A Yes. Yes, sir, I believe I remember who he was. 11 Q He was one of your coworkers at the Forest Service? 12 A Yes. 13 Q Back in 2002? 14 A Yes, sir. 15 Q And you were on patrol with him earlier in the day of 16 June 8, 2002, weren't you? 17 A Yes, sir. 18 Q Do you know -- do you recall telling Mr. Overstreet that 19 you had gotten a letter from John the morning of June 8 that 20 was upsetting to you? 21 Let me rephrase the question. Let me start again. 22 Do you recall telling Mr. Overstreet that you had 23 gotten a letter from John Barton? 24 A I don't remember, sir. 25 Q Well, let me ask you to take a look at page 2 of

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 28 of 585 - Direct 1 Mr. Overstreet's memo. 2 MR. WILLIAMSON: And that's Exhibit 30, counsel? 3 MR. ROCHE: Exhibit 30. 4 BY MR. ROCHE: 5 Q And specifically the first paragraph. 6 A I read it, sir. 7 Q Thank you. 8 Does that refresh your recollection that you told 9 Mr. Overstreet about the letter from your husband that was so 10 upsetting to you, even before this fire started? 11 A No, sir. I don't, I don't remember that at all, sir. 12 Q One way or the other, you just don't remember? 13 A That's right, sir. 14 Q Now, if you would take a look at Exhibit 6, please. And 15 that also has been stipulated into evidence. 16 A Yes, sir. 17 Q Do you recognize Exhibit 6 as the sworn statement that 18 Special Agent Jones and Special Agent Konantz typed up and had 19 you sign? 20 A I recognize my hand -- signature, sir, but I don't remember 21 the letter, I mean, the letter itself. 22 Q Okay. 23 And by "letter," you're referring to Exhibit 6, the 24 statement? 25 A Correct.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 29 of 586 - Direct 1 Q Okay. 2 Now, in Exhibit 6, it says, On Saturday, June 8, 2002, 3 I left my home and my husband handed me a letter. Do you see 4 that? 5 A Yes, sir. 6 Q Now, by the time that you signed Exhibit 6, you had already 7 confessed to starting the Hayman fire, had you not? 8 A I don't remember, sir. I'm not for sure on the date. 9 Q Okay. 10 Well, I think it all happened on the same day. So I 11 guess what I'm trying to get at is first you verbally admitted 12 starting the Hayman fire to Agent Jones and Agent Konantz, 13 right? 14 A Yes, sir. 15 Q And later they typed up a statement and had you sign it, 16 correct? 17 A I'm not for sure, but I believe so, sir, yes. 18 Q Okay. Well, by the time -- let me try it this way. By the 19 time that you signed Exhibit 6, you had already told Agent 20 Jones and Agent Konantz you started the fire. 21 A I believe so, sir, yes. 22 Q Is it fair to say that your state of mind at that point in 23 time was you were nervous and scared? 24 A Yes. Yes, sir. 25 Q Probably an understatement.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 30 of 587 - Direct 1 A Yes, sir. 2 Q Now, the statement says, on Saturday, June 8, is when you 3 got the letter. And my question is, is it possible you got the 4 letter, as you've testified here today, day or two earlier than 5 that? 6 A I don't remember. It could be possible, sir, I'm not for 7 sure. 8 Q Miss Barton, did you want to put the fire out before it got 9 to the trees? 10 A Yes, sir. 11 Q And you tried to put the fire out before it got to the 12 trees, didn't you? 13 A As far as I can remember, I did try to put it out, sir. 14 Q There's been a suggestion by Special Agent Jones, Senior 15 Special Agent Steensland that this might have been a hero fire. 16 MR. WILLIAMSON: Is that a question? 17 BY MR. ROCHE: 18 Q My question is real simple: Was this a hero fire? 19 A No. No, sir. 20 MR. ROCHE: Thank you, Miss Barton, that's all I've 21 got. 22 THE COURT: All right. Are there other questions on 23 direct examination by counsel for any of the other plaintiffs? 24 MR. WITT: No, Your Honor. 25 MR. DUNFORD: None.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 31 of 588 - Direct 1 MR. JONES: No, Your Honor. 2 THE COURT: All right. Cross-examination by the 3 government. 4 CROSS-EXAMINATION 5 BY MR. PHARO: 6 Q Miss Barton, as I understand what you're testifying to 7 today, you're indicating that you lit a letter in the campfire 8 ring on June 8, 2002; is that right? 9 A Yes, sir. 10 Q And you knew at that time there was a fire ban in effect? 11 A Yes, sir. 12 Q And you also knew that there was a red flag warning in 13 effect? 14 A Yes, sir. 15 Q And you understood that a red flag warning meant that the 16 conditions for having an out-of-control wildfire were extreme, 17 correct? 18 A Yes, sir. 19 Q And when you were initially contacted by Robert Sherrill, 20 he was the first law enforcement officer on the scene, you told 21 him that you had -- had discovered the fire and denied all 22 involvement in starting it, right? 23 A Sir, I don't remember who was the first law enforcement 24 officer that was on the fire. 25 Q Well, would you agree with me that up until June 15, 2002,

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 32 of 589 Terry Barton - Cross 1 you persisted in a version of events that you had found the 2 fire rather than started it, correct? 3 A The way they were questioning me, sir, yes. 4 Q And in fact, you even told law enforcement that you saw a 5 vehicle in the area and that maybe that was involved in 6 starting the fire, correct? 7 A I don't remember, sir. 8 Q If law enforcement officers have testified to that, you 9 wouldn't dispute that you told them that, would you? 10 A I don't know, sir. It's been a while. 11 Q Now, let's look at -- all right, well, let me backtrack a 12 second. 13 You started the letter on fire, and you thought it was 14 out; is that right? 15 A As far as I thought, yeah. I believe I thought it was out. 16 I mean, I don't... I wasn't thinking, sir. 17 Q But you didn't see any open flame in the campfire ring, 18 right? 19 A I don't remember, sir. 20 Q And -- well, you wouldn't have walked away if you saw open 21 flame, would you? 22 A No, sir. 23 Q Okay. 24 So you walked back to your truck, and you got in your 25 truck; is that right?

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 33 of 590 Terry Barton - Cross 1 A The best I can remember, that's what I did, sir. 2 Q And then you drove west on county road -- or forest road 3 290; is that right? 4 A I don't know if it was west or not, sir. I just know that 5 I drove forward. 6 Q All right. 7 But what you were trying to do was go to a place where 8 you could make a three-point turn and then come back; is that 9 right? 10 A The best I can remember. I don't -- you know, I don't 11 think I was planning on turning around at that point, no, sir. 12 Q But you did turn around at some point down forest road 290? 13 A Yes, sir. 14 Q And then you came back past the campfire ring? 15 A Yes, sir. 16 Q And that's when you saw the fire; is that right? 17 A Yes, sir. 18 Q And you said, I think on direct examination, that that 19 could have taken as much as five minutes; is that right? 20 A That was just a guess, sir. I'm not for sure. I don't 21 remember. 22 Q And when you saw the fire, it was actually in the grass up 23 to and past the closest trees, wasn't it? 24 A The best I can remember, I believe so, sir. I'm not for 25 sure.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 34 of 591 Terry Barton - Cross 1 Q You believe it was up to the trees and, in fact, past the 2 trees. 3 A I don't know about being past it, sir. 4 Q And in fact, is it not true that when you first saw the 5 fire, it was actually torching in some trees? 6 A I don't, I don't, I can't be, I don't know for sure. I 7 don't believe it was, sir. But I can't -- I don't -- I don't 8 know. 9 Q Do you remember doing the video reenactment on June 13, 10 2002, with Mr. Steensland and Ms. Jones? 11 A I'm not for sure of the dates, sir. But I remember doing 12 the video, but I don't remember the date. 13 Q Okay. Well, let me have you look at Exhibit G3. 14 MR. WILLIAMSON: I assume this is in the white book, 15 counsel? 16 MR. PHARO: Yes. 17 MR. WILLIAMSON: I apologize. We stop at F20. 18 Oh, here it is. 19 THE WITNESS: Yes, sir. 20 BY MR. PHARO: 21 Q And turn to page 2. 22 And I'll represent to you, this is a transcript of the 23 video reenactment on June 13, 2002. 24 MR. WILLIAMSON: Is this in evidence, Your Honor? 25 MR. PHARO: Yes.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 35 of 592 Terry Barton - Cross 1 THE COURT: Yes, it's in evidence. 2 BY MR. PHARO: 3 Q And do you see at the top of the page, where that's you 4 talking, and the second line where you say, And at the time, 5 uh, it was torching the trees? 6 A Yes, I see that, sir. 7 Q And then it says, Pueblo dispatch asked for a legal. 8 Do you see that? 9 A Yes, I see it, sir. 10 Q Okay. 11 So does that refresh your recollection as to whether 12 it was torching in the trees before or after you were asked for 13 the legal? 14 A Sir, I really don't remember. 15 Q So as you're testifying here today, would it be fair to say 16 you don't remember where the fire was when you got back? 17 A I'm just not, I'm not positive. You're asking me length 18 and feet, sir, and I don't -- I'm not for sure. I don't 19 remember. 20 Q But the fire was pretty big, wasn't it, and it was 21 spreading fast? 22 A I remember -- 23 MR. ROCHE: Objection. Vague. 24 THE COURT: Sustained. 25 BY MR. PHARO:

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 36 of 593 Terry Barton - Cross 1 Q The fire was spreading fast, correct? 2 A The best I can remember, yes, sir. 3 Q And one of the things you did with your shovel was that you 4 dug some dirt near the base of a Ponderosa pine and threw dirt 5 on the tree itself. Do you remember that? 6 A No, sir, I don't remember. 7 Q You don't remember doing that? 8 A No. 9 Q What do you remember doing? 10 A I'm not sure, sir. It's been -- it's been something that 11 I've been trying to get my life on with. 12 Q You do remember calling in the fire, correct? 13 A Yes, sir. 14 Q And you do remember providing the legal description, 15 correct? 16 A Yes, I believe I did, sir. 17 Q And you remember putting your Nomex uniform on, correct? 18 A Yes, the best I can remember. 19 Q And the reason you would put that on is for safety, 20 correct? 21 A Yeah. Yes, sir. 22 Q I mean, that's like a fire retardant material, right? 23 A Yes, sir. 24 Q And it's -- be a good idea to have that on before you tried 25 to suppress a fire, wouldn't it?

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 37 of 594 Terry Barton - Cross 1 A Yes. Yes, sir. 2 Q In fact, that's what your training teaches you, doesn't it? 3 A Yes, sir. 4 Q Now, Ms. Barton, let's look at Exhibit 6 in the, in the 5 black book, or you can look up on the screen, if you prefer. 6 A Yes, sir. 7 Q And that, that's the written statement that plaintiffs' 8 counsel was asking you about on direct which you gave to Kim 9 Jones on June 15, 2002, correct? 10 A I don't remember these dates, sir. I don't remember the 11 date. 12 Q Okay. 13 But you remember signing a statement that -- in the 14 presence of Kim Jones? 15 A Yes, vaguely, I remember, yes. 16 Q Well, if Kim Jones testified that you provided her with 17 this statement, you wouldn't dispute that, would you? 18 A I have no opinion, sir. 19 Q Well, if you look halfway -- about halfway down, do you see 20 where you said, The fire was around the trees, the flame 21 lengths were 1 to 2 feet, and the grass fire was past the 22 trees? 23 A Yes, sir, I see that. 24 Q Does that refresh your recollection as to how big the fire 25 was when you first got back there?

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 38 of 595 Terry Barton - Cross 1 A No, no, it doesn't, sir. 2 Q But would you agree that you probably had a better 3 recollection when you were providing information on June 15, 4 2002, than you do today? 5 A Probably, sir. I mean, I was, I was distraught and -- I 6 mean, yes, sir. 7 Q And also in there, it says that you were asked by Pueblo 8 dispatch and you said, It was 20-by-20, but I tried to 9 underestimate rather than to overestimate it. 10 MR. WILLIAMSON: We have no idea what part of the 11 exhibit -- 12 MR. PHARO: You can't see that. It's just below where 13 I was asking before. 14 MR. WILLIAMSON: And the quote is again, I'm sorry? 15 MR. PHARO: It says, Hessler asked some other 16 questions and then asked how big it was, so did Pueblo 17 dispatch. 18 MR. WILLIAMSON: I see. We found it, yes. 19 BY MR. PHARO: 20 Q Yeah, I answered that it was 20-by-20, but I tried to 21 underestimate it, rather than overestimate it. 22 A I don't remember. I don't remember it, sir. I mean, I 23 don't -- I can't remember what size it was. 24 Q All right. If you could turn to Plaintiffs' Exhibit 37. 25 And that's in the black book.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 39 of 596 Terry Barton - Cross 1 MR. ROCHE: And, Your Honor, I believe Exhibit 37 is 2 not yet in evidence. 3 MR. PHARO: It is not, Your Honor, and I was only 4 going to lay a foundation for -- 5 THE COURT: I realize it's not in evidence. But all 6 he asked her to do was refer to it. So there's nothing for me 7 to do or rule on at this time. 8 BY MR. PHARO: 9 Q All right. If you could find Exhibit 7 that's attached to 10 that Exhibit 37. 11 MR. WILLIAMSON: We have that before us, counsel. 12 MR. PHARO: Okay. 13 BY MR. PHARO: 14 Q Now, have you had a chance to look at it? 15 A Briefly. 16 Q And look at the second page, is that your signature? 17 A Yes, sir. 18 Q And it says, June 10, 2002? 19 A Correct, sir. 20 Q So do you recall preparing this written statement with 21 Stephanie Howard, one of your coworkers? 22 A I vaguely remember, sir. 23 Q All right. 24 This was a written statement that Chuck Dunfee, 25 another one of your coworkers, had suggested that you prepare

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 40 of 597 Terry Barton - Cross 1 to give to the law enforcement agents. 2 Do you remember that? 3 A I vaguely remember, sir, I'm not for sure. 4 Q Okay. 5 And that's your signature, though? 6 A Yes, sir, that is my signature. 7 Q And is that your handwriting or Stephanie Howard's? 8 A It's not my handwriting. But I can't say that it's 9 Stephanie's or not, sir. 10 Q And you're telling us here today that you don't remember 11 getting together with Stephanie and writing out this statement? 12 A That's not what I'm saying, sir. I'm saying that -- 13 there's a lot of the stuff that I don't remember back then. 14 Q My question is: Do you agree that this is a statement that 15 you and Stephanie Howard wrote out and you signed on or about 16 June 10, 2002? 17 A Yes, sir, I believe so. 18 MR. PHARO: I'd move for the admission of only the 19 two-page document which is Exhibit 7 to Plaintiffs' Exhibit 37. 20 THE COURT: Any objection? 21 MR. ROCHE: No objection to just those two pages, Your 22 Honor. 23 THE COURT: All right. Exhibit 7, which is a part of 24 Exhibit 37, is received. But only Exhibit 7 is received as 25 part of the larger exhibit.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 41 of 598 Terry Barton - Cross 1 (Exhibit 37.7 admitted.) 2 BY MR. PHARO: 3 Q And if you'll look at the first part of that statement, do 4 you see where it says you saw a 20-by-20 fire beneath the 5 Ponderosa pine in the duff? 6 A Yes, sir. 7 Q And does that refresh your recollection today as to how big 8 the fire was when you first saw it? 9 A No, sir. I mean, I'm being honest, sir, I can't remember 10 how big it was to this day, no. 11 Q Now, let me ask you a little bit about, about this letter. 12 I think you said that the letter was from your husband 13 and it was, in essence, him wanting to get back together or 14 keep the marriage together; is that right? 15 A Yes, sir. 16 Q And you and your husband actually have reconciled, correct? 17 A We're working on it, sir. 18 Q What does that mean? 19 A Sir, I've been in prison for five, six years. You can't 20 just get out of prison and think something's going to work 21 right the next day. 22 Q Well, you and your husband maintained contact during the 23 time period you were in prison, correct? 24 A Correct, sir. 25 Q And you are in contact with him right now, correct?

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 42 of 599 Terry Barton - Cross 1 A Yes, sir. 2 Q And you know who Mr. Lawler is, right? 3 A Who? 4 Q Mark Lawler. 5 A Yes, sir. 6 Q He was a coworker of yours with the Forest Service? 7 A Yes, sir. 8 Q And in fact, he was the first -- he was the chief of the 9 first fire truck that got to the scene on June 8, right? 10 A Yes, sir. 11 Q Okay. 12 And he was the person that you would confide in, 13 correct? 14 A I'm not for sure what you're trying to ask me, sir. 15 Q Well, you would tell him things about your personal life. 16 A I may have, yes, sir. 17 Q If you could take a look at... I think it's 25. If it's 18 not 25, it's 26. 19 Look at 25, first. 20 MR. WILLIAMSON: And these are plaintiffs' exhibits, 21 counsel? 22 MR. PHARO: Yeah. 23 MR. WILLIAMSON: We have that before us. 24 BY MR. PHARO: 25 Q All right. Now, it should be 26. Sorry.

Case 1:06-cv-01135-WYD-MJW Document 150 Filed 09/12/08 USDC Colorado Page 43 of 600 Terry Barton - Cross 1 MR. WILLIAMSON: We have that before us. 2 BY MR. PHARO: 3 Q And this is in evidence. 4 So, Miss Barton, if you look at -- look at the last -- 5 second page for me, look at the last paragraph. 6 A I see it, sir. 7 Q Okay. 8 And in that, it says that you, Barton told him on 9 Friday, June 14, 2002, that she had received a letter from her 10 husband saying that she was Satan and breaking the family up. 11 Do you see that? 12 A I see it, sir. But I don't remember that conversation, 13 sir. 14 Q Do you have any reason to dispute that you told him that? 15 A I don't have any way of knowing or remembering. 16 Q And you didn't get a second letter that -- after the first 17 one that said you were Satan, did you? 18 A Not that I remember, sir. 19 Q And if you also look at the second -- the same exhibit, 20 second page, second full paragraph, do you see where Mr. Lawler 21 says you said when you arrived the fire was already in the 22 trees? 23 MR. ROCHE: Your Honor, object. It misstates the 24 exhibit's language. It was already to the trees. 25 MR. PHARO: To the trees, I'm sorry.