February 2, 2007

THE STATION NIGHTCLUB DISASTER – Fire Marshal Shielded – Grand Jurors Told R.I. Law Makes Civil Officials Immune From Liability

By Tracy Breton; Journal Staff Writer

When it came time for grand jurors to consider bringing criminal charges in connection with the Station nightclub fire, prosecutors submitted only three names of potential defendants for the jurors' consideration: Jeffrey and Michael Derderian, the owners of the club, and Daniel M. Biechele, the tour manager for the rock band who lit fireworks that sparked the deadly blaze.

West Warwick fire inspector Denis P. Larocque, who had inspected the nightclub several times before the fire, but had failed to cite the Derderians for the deadly polyurethane foam that lined the walls and ceiling of their club, never became a subject of the grand jury's deliberations when it came time to consider indictments.

Michael J. Healey, spokesman for Attorney General Patrick C. Lynch, told The Providence Journal yesterday that prosecutors thought it would be irresponsible and unethical to submit Larocque's name as a potential defendant because, based on their review of all the evidence and testimony, no reasonable person could find that Larocque had acted in bad faith or with malice - two necessary in gredients required under state law to hold him liable.

In a news release that accompanied yesterday's release of 10,000 pages of grand jury material and witness statements, Healey added: "I would also remind the public that although a grand jury has broad powers, it is impaneled for a very narrow purpose: to review the adequacy of evidence, and then, based on the existing laws of the State - not the laws that somebody might wish could be applied to a case - to decide whether or not to indict a suspect. A prosecutor who fails to keep a grand jury focused on its purpose is misusing and even abusing his powers.''

The grand jury transcripts and the raft of witness statements were released by Lynch's office to fulfill a promise he made to the public after the Derderians' controversial plea agreements were accepted by the court last September, and in response to a public records request made by The Journal. More witness statements and other evidence are expected to be released in coming weeks.

The grand jury transcripts show that the grand jurors were concerned about fire inspections at The Station and had many of the same questions that the public has had since the Feb. 20, 2003, fire at the West Warwick nightclub, which killed 100 people and injured more than 200 others.

While reviewing evidence , the grand jurors asked prosecutors to bring in an expert witness who could provide information about fire investigations, including an explanation of state and local fire codes, what type of inspections the Town of West Warwick was supposed to do, if there was a difference between an annual inspection and a license transfer application and "whether there were any standards for inspections, checklists or national standards."

The prosecutors mulled over the grand jurors' request and embarked on legal research, then told them that "before we go any further" that they wanted the grand jurors to know that under Rhode Island law, the state fire marshal or anyone assisting him or deputized by him to carry out inspections is immune from criminal or civil liability unless there is proof that he acted in bad faith or with malice.

Prosecutor Michael Stone told the grand jurors, "Like I say, whether you agree with it, whether you disagree with it, it's the law of the State of Rhode Island and the law that we must follow."

Based on that, Stone asked, "Do you still wish to hear from a witness to answer the questions that you previously asked about the Town of West Warwick, the fire marshal's duties, inspections and types of inspections that are done?"

A grand juror asked for a definition of "bad faith."

Stone replied: "I think our legal interpretation of bad faith would be that the person would have to be, you know, acting and knowing that there's something wrong and ignoring it for some particular purpose and the maliciously would be equal to an evil intent almost as in, you know, the maliciousness you need for committing any crime.

"You really have to find, and there would have to be evidence to show, that the person either knew there was something wrong and ignored it purposely or perhaps was doing it for other reasons, maybe for pecuniary gain or something like that, but as far as acting in good faith and without malice, they're exempt from civil or criminal liability. Yes, sir."

"Why have a fire marshal?" the grand juror retorted. "If the fire marshal did nothing, not responsible for anything, why have a fire marshal? There's no use in having a fire marshal."

"Sir, you would have to ask the General Assembly that," Assistant Attorney General William Ferland responded.

"Yes," said Stone. "That's the statute they enacted and I will say one other thing we're all responsible, you know, for knowing the law, I mean for - for obeying the law as it stands. You can't get around that, so I'm telling you that this statute in this instance, in our opinion, would relieve a fire marshal [who was] performing his duties in good faith and without malice for any act or omission that he may have or may not have committed."

A grand juror asked the prosecutors for clarification: "So for malice, I wrote down evil intent."

"Correct," said Ferland.

"Yes," echoed Stone.

"What kind of words can I put down for bad faith?" the grand juror asked.

Ferland launched on a long explanation of malice, which he said included "a conscious intent on the part of the actor."

But "what about bad faith?'' the grand juror pressed. "Can you give us an example of bad faith? Let me ask you a question. If someone works for the Department of Labor & Training and their job is to go out and see if a list of companies have Workers' Compensation, and they turn in a report that says, yeah, okay ABC Company, I checked them, they got Workers' Comp, when, in fact, they don't have Workers' Comp and the employee was really just not doing their job, would that be considered bad faith or just lousy workmanship?"

"Well, that's difficult," Ferland replied. "You are asking me to qualify or give you the quality of that act, which I can't do, because that would be my subjective interpretation of that."

Another grand juror asked the prosecutors what the rationale was behind the General Assembly's enacting a law which, in most cases, would protect fire inspectors from being held liable.

"It would be pure speculation on our part to say what the rationale is," said Ferland. "One thing to consider though is that many of these fire inspectors are volunteer firefighters and they perform these duties on behalf of fire districts, local fire districts in a volunteer capacity, so one thing that the General Assembly could have had in mind - and this is mere speculation - is that you're not going to find many people coming out and volunteering their time to conduct such inspections if they know they are going to be liable for negligently performing those tasks, and so in an effort to encourage people to volunteer their time in a day and age when we still rely heavily upon volunteer firefighters, the General Assembly may, in its infinite wisdom, have decided to provide this prophylactic protection to those people who are willing to go forward."

"Whether we agree with the wisdom of the General Assembly or not, it is irrelevant," said Ferland. "We can talk about how outrageous it might be that a particular statute was enacted or not enacted but we are duty bound to follow the law whether we agree with it or we don't."

Denis P. Larocque was not a volunteer fire inspector. He is still employed full-time as a battalion chief by the West Warwick Fire Department. He makes $55,931 per year, the town said yesterday and at the time of the Station fire, had a salary of just over $49,000 per year.

But upon hearing the prosecutors' explanation of the law, the grand jurors decided to withdraw their request for an expert witness on fire inspections.

When it came time to vote on whether to indict the Derderians and Biechele, the grand jurors were told that the only crime they should consider was involuntary manslaughter. They were told to cast votes on two different theories of that crime: misdemeanor manslaughter and criminal negligence, both felonies. The grand jurors were confused by the law surrounding involuntary manslaughter - an unintentional homicide committed without malice aforethought - and by the concept of criminal negligence and misdemeanor manslaughter. They repeatedly asked for clarification on the law and at one point asked whether the prosecutors would give them written instructions that they could refer to in their private deliberations. The prosecutors said no, but that if they had any questions as they deliberated, they could ask a prosecutor to come back into the room to give them further oral instructions.

In the end, the grand jury voted to indict all three men under both theories of involuntary manslaughter. Later, the three defendants each admitted guilt to 100 counts of misdemeanor manslaughter - one for each person who died in the fire; the other counts based on the criminal-negligence theory were dismissed by the state. Michael Derderian and Biechele are now in prison serving four- year terms. Jeffrey Derderian received a suspended sentence and was ordered to perform 500 hours of community service.

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Stills from a video of the Station nightclub fire, shot by Steven McLaughlin and released yesterday. McLaughlin was described by the attorney general's office as a passerby.


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Fire Marshal Denis P. Larocque, who had inspected the nightclub several times before the fire, never became a subject of the grand jury's deliberations when it came time to consider indictments.


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