Digital Extra: The Station Fire

04:45 PM EDT on Thursday, May 5, 2005

By TRACY BRETON
Journal staff writer

PROVIDENCE -- Most of the grand jurors who voted to indict the owners of The Station nightclub were absent for parts of the testimony presented by prosecutors, according to papers filed by defense lawyers yesterday in Superior Court.

The alleged irregularities in the presentation of the state's case to the grand jury could pave the way for the filing of a motion to dismiss the indictment returned against Michael and Jeffrey Derderian, the owners of the West Warwick nightclub where 100 people died after a Feb. 20, 2003, blaze.

The brothers have pleaded not guilty to the 200 counts of involuntary manslaughter against each of them. A third defendant in the case, Daniel Biechele, the former tour manager for the rock band Great White who set of the pyrotechnics which started the fire, has also pleaded not guilty.

In papers filed late yesterday with Superior Court Judge Francis J. Darigan Jr., lawyers for the Derderians assert that "17 of the 21 grand jurors who voted on the indictment were absent for part of the presentation'' of the evidence which took place over 35 days over a nine-month period.

"At a minimum, one of the grand jurors missed seven days; one missed five days; three missed four days; one missed three days; four missed two days; and seven missed one day,'' the defense lawyers say.

The defense lawyers say that some grand jurors were missing on dates when prosecutors presented testimony from Barry Warner, who sold the Derderians the highly-flammable polyurethane foam that covered the walls and ceiling of their nightclub; and when Aram DerManouelian who owned the Johnston company that Warner worked for, testified.

"In addition,'' the lawyers say, "it appears that grand jurors were absent'' when prosecutors questioned Denis Larocque and Steve Murray, the West Warwick officials who were responsible for inspecting the club for fire-safety code violations and for interpreting applicable codes.

The defense lawyers also claim that contrary to past practice and Rhode Island court rules, at least one grand juror who missed testimony "was never provided with a transcript or tape of the evidence that he or she missed.'' Instead, they say in their court filing, the grand juror was merely given an unrecorded oral summary of what they missed by some of those who were in attendance.

"This procedure is inconsistent with both the letter and spirit of Rhode Island Rules of Criminal Procedure,'' lawyers for the Derderians assert.

Atty. Gen. Patrick C. Lynch issued a statement this afternoon saying his office has handled the case properly.

"I support my prosecutors' presentation of the state's case to the statewide grand jury unequivocally," Lynch said in the prepared statement. "I am confident that we have followed every law, policy, and procedure concerning our handling of the grand jury with the highest degree of integrity and professionalism."

"We look forward to arguing this motion vigorously in court and we will continue to maintain our focus on seeking justice for those affected by this horrific incident," Lynch said.

The lawyers for the Derderians now say they intend to interview more of the grand jurors who heard testimony in The Station fire case in an effort to ferret out in additional evidence of irregularities in the secret proceedings.

They say they need to continue with their questioning of the grand jurors "to complete their investigation in preparation of appropriate pre-trial motions pursuant to [the Derderians'] rights as guaranteed by the United States Constitution and Rhode Island Constitution.''

"The documented frequent and repeated absence of grand jurors --together with the information that some grand jurors provided off-the-record 'summaries' of testimony to other grand jurors -- raise significant questions regarding the manner in which the grand jury investigation was conducted and necessitate further investigation,'' the lawyers say in their court filing.

They say they "have a good faith basis for pursuing this line of inquiry,'' based on legal precedent.

The U.S. Supreme Court, in the 1962 case of Wood v. Georgia, said that is is essential that a grand jury be both independent and informed.

The grand jury, the court said, "has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution'' and is the arm of the justice system which determines whether a charge "is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.''

In their filing, the defendants also cite a New Jersey federal appeals court decision in a racketeering case -- U.S. v. Provenzano -- which upheld the defendants' convictions but said that multiple absences by grand jurors who voted to indict "may border the limits of acceptability.''

In that case, there were 12 people who voted on the indictment and only three of the 12 attended every session; four missed one session each; three were absent from two sessions each; and two missed three sessions each.

The 3rd U.S. Circuit Court of Appeals said in the Provenzano case that prosecutors should ensure "the perception of fairness'' by providing transcripts of missed testimony to grand jurors for sessions they were absent from.

Several courts have taken up the issue of grand-juror attendance in the past.

When a federal trial judge discounted all of the votes of grand jurors who had missed some testimony in the case they were hearing, finding that a grand juror cannot be considered informed unless he or she attends all sessions in which evidence is presented on a proposed indictment, a divided appeals court reversed that decision.

The 9th U.S. Circuit Court of Appeals in California said in that case that the grand jury's job is to decide whether probable cause exists to believe that a crime has been committed and that this duty could be performed even if a grand juror was absent during presentation of some of the prosecution's evidence.

And the 7th U.S. Circuit Court of Appeals in Illinois said in a 1981 case that perfect attendance was not a requirement for grand jurors -- that court rules required only that a quorum be present for each session. To invalidate indictments because of grand jury attendance would frustrate congressional intent, that court said.

Biechele did not join in the "joint notice'' by the Derderians "of intent to resume interviews of grand jurors'' in the Station fire case.

Darigan has scheduled a pretrial conference with both sides in the case for Monday morning. It was unclear whether the judge will take up this issue at that time or later.

Kathleen Hagerty, one of the lawyers representing the Derderians, said that while she would not comment beyond what is asserted in court papers, "we're going to diligently pursue a defense and pursue every possible avenue that we can pursue.''