Digital Extra: The Station Fire

04:16 PM EDT on Monday, May 9, 2005

By TRACY BRETON
Journal staff writer

PROVIDENCE -- Prosecutors in The Station nightclub fire case launched their own offensive today against claims of grand jury irregularities, arguing that defense lawyers for Michael and Jeffrey Derderian violated court rules by interviewing grand jurors without a judge's permission.

The prosecutors were reacting to the Derderian brothers' complaint that most of the grand jurors who voted to indict each of them on 200 counts of involuntary manslaughter were absent for major portions of the testimony. The charges stem from the deaths of 100 persons due to the Feb. 20, 2003, fire at the West Warwick club.

Lawyers for the Derderians base their claim, filed in court papers last week, on interviews with grand jurors and a review of attendance records.

But, in court papers filed today, the prosecutors charge that the grand juror interviews violated Superior Court rules, a violation that "may be punished as a contempt of court.''

After a long meeting in his chambers with lawyers for both sides, Superior Court Judge Francis J. Darigan Jr. declined to consider the issue today.

Darigan announced in court that he would meet with the lawyers again next Monday and schedule a date for a hearing on the grand jury issue. The hearing, he said, will be held sometime later next week or the week after that.

The Derderians -- who were in court today -- filed papers last week to alert the court that they plan to continue their interviews with grand jurors.

Based on their initial interviews, they said that some grand jurors didn't hear crucial testimony and that contrary to past practice and Rhode Island court rules, at least one grand juror who missed testimony was never given a transcript or tape recording of the evidence he or she missed but was instead brought up to speed by other grand jurors who provided an unrecorded, oral summary.

The alleged irregularities in the presentation of the state's case to the grand jury could form the foundation for a challenge to the indictment.

In their motion today, prosecutors assert that some of the grand jurors questioned by the Derderians' lawyers have complained to the Department of Attorney General about ``the propriety of the communications.''

One grand juror, after hearing that the defense lawyers planned to continue their interviews, ``expressed frustration'' because she had been told that grand jury matters were secret and that ``she had put the matter behind her.'' She wanted to know if she could refuse to cooperate, the prosecutors said.

Prosecutors from the office of Attorney General Patrick C. Lynch contend that the Derderians' proposed plan to continue interviewing the grand jurors is both ``unnecessary and unwarranted'' and ``constitutes an unjustified invasion of their privacy.''

They say there was nothing improper with the grand jury proceedings and if Darigan allows the defendants to continue their questioning, it ``will undoubtedly have a chilling effect on future grand jurors' willingness to participate in free and open debate and discussion of the matters occurring before them for fear that they will later be subject to interview and embarrassment.''

Prosecutors say that before a defendant may interview a grand juror about his or her service, he must get court permission, and that ``a knowing violation'' of the Superior Court rule ``may be punished as a contempt of court.''

In this case, they say, it would be fruitless for Darigan to allow further such interviews -- and they are urging him to prohibit them -- because, they argue, nothing the defendants could uncover would form enough of a basis for throwing out the indictment.

The grand jury that returned the involuntary-manslaughter indictments of the Derderians and Daniel J. Biechele, the former tour manager of the rock band Great White, whose pyrotechnics sparked the fire, sat for 35 days over 10 months, according to Lynch's office.

All together, 22 grand jurors heard the case, they say, 21 were present for voting on the indictment and all but one voted to indict the Derderians (with one voting to indict just Biechele.)

Court rules require only that 12 grand jurors concur in voting to indict, the prosecutors point out. Lynch's office contends that all 20 of the concurring grand jurors were qualified to vote based on their attendance records and that there was a 97.7 percent attendance record for the 12 who missed the fewest sessions.

Prosecutors argue that there is no requirement in Rhode Island that grand jurors be present for each session of the proceeding in order to be able to vote. ``To the contrary,'' they say, court rules dictate that there only has to be a quorum present to hear testimony.

Although the Rhode Island Supreme Court has not addressed this specific issue, courts in other jurisdictions ``have repeatedly held that it is not necessary for grand jurors to have heard each session to be able to vote on the issuance of an indictment,'' the prosecutors point out.

And they say that in The Station fire case, ``it is impracticable (sic) to think that a statewide grand juror empanelled to sit for at least 18 months will not miss one or more sessions.''

The prosecutors also assert that all of the grand jury proceedings were recorded and that at no time -- except perhaps in deliberations -- did grand jurors engage in ``summarization'' of evidence to help others out who had been absent.

The grand jury process is much different from what happens when a case is tried before a petit jury that must unanimously agree on a verdict beyond a reasonable doubt after considering all evidence, the prosecutors point out.

Grand jurors -- in a one-sided proceeding -- decide whether the prosecution has presented sufficient evidence to establish probable cause that a crime has been committed and that the named suspects are responsible. Once a grand juror hears enough to satisfy him or her that an indictment should be returned, he or she may vote even if they haven't heard every bit of evidence, the prosecutors argue.

Also today, the judge said he also hopes to know by next Monday whether an agreement can be reached between the prosecution and defense that would free up more foam for testing by other parties, including lawyers representing the fire victims. If no agreement is reached, prosecutors contend they will need to use up another 48 feet of foam to conduct more flame-spread tests.

There is a limited amount of foam that was found in the charred ruins of the West Warwick nightclub, and lawyers in the criminal and civil cases have been sparring over who will get pieces of the foam to test and when.

Journal staff writer Tracy Breton can be reached at tbreton@projo.com or 277-7362.