Digital Extra: The Station Fire

They want a judge to sanction the attorney general if he makes any more "inappropriate and inflammatory" remarks about the owners of The Station nightclub.

01:00 AM EDT on Friday, April 30, 2004

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- Lawyers representing the owners of The Station, who are facing involuntary manslaughter charges for the deaths of 100 people who perished in a fire at their West Warwick nightclub, are asking a judge to bar Attorney General Patrick C. Lynch from making further public comments about the case.

In court papers filed earlier this week in Superior Court, lawyers for Michael and Jeffrey Derderian assert that since the fire on Feb. 20, 2003, Lynch has repeatedly violated the lawyers' Rules of Professional Conduct by making prejudicial comments about the defendants.

The lawyers -- Richard M. Egbert, Kathleen M. Hagerty, Jeffrey B. Pine and Thomas M. Dickinson -- are asking Judge Francis Darigan, who is presiding over the criminal case, to issue sanctions, including an order that would dismiss the case if Lynch makes any more "inappropriate and inflammatory" remarks about the Derderians.

In a statement issued late yesterday afternoon, Lynch defended his public comments in the case thus far but declined to address the defense lawyers' arguments further, saying he would wait to do so until "the appropriate time" in a courtroom. He vowed in his statement to continue to fight for "the real victims of the horrific event that spurred this prosecution" -- the fire victims and their families.

On Dec. 9, a grand jury indicted the Derderians and Daniel Biechele, the tour manager for the rock band Great White who set off the pyrotechnics that started the deadly fire. Each was charged with 200 counts of involuntary manslaughter. All have pleaded not guilty.

Darigan is scheduled to meet with the lawyers for the prosecution and defendants in chambers this morning. Dyana Koelsch, spokeswoman for the state court system, said the judge plans to address the defense motion for sanctions, among other pretrial discovery issues, at today's conference but that he may not address the matter in open court.

The Derderians' lawyers contend in court papers that Lynch's remarks have prejudiced their clients' right to a fair trial. They list numerous examples, dating back to the days just after the fire, where they claim that Lynch violated the Rhode Island's Rules of Professional Conduct and "boldly defied" Darigan's admonition to counsel -- made after the defendants' indictments -- that they not make comments outside of court that might prejudice potential jurors.

For example, the defense lawyers blast Lynch for chiding the Derderians for refusing to cooperate with investigators in the days just after the fire -- a time, the defense lawyers say, when they, as representatives of the brothers, were meeting with and voluntarily providing investigators with information and documents.

But they say "the most egregious of [Lynch's] statements came in the days surrounding the one-year anniversary of the fire."

The statements they zero in on were made to members of the Boston media, where they quote the Rhode Island attorney general as referring to the nightclub fire as a "perfect storm -- gross negligence, disregard for human life by action and inaction."

"It's probably some bad luck, greed and stupidity," they quote Lynch as saying in an interview on Channel 7.

In another interview with a Boston Herald reporter, Lynch repeated "his 'perfect storm' analogy" calling the tragedy "a combination of stupidity, greed and careless disregard for human life," the court papers say.

In that interview, Lynch also told the public "that the Derderians and/or Biechele might plead guilty," the defense lawyers complain.

And, they say, Lynch continued to talk about the possiblity of a plea on WPRO radio, saying, "that's a possibility" and that plea negotiations would take place later and that any plea agreement "would involve jail."

"The prosecution has consistently talked to the media about the Derderians' role in the investigation, as well as their character and alleged criminal responsibility. The prosecution's chosen course of action now threatens the Derderians' ability to receive a fair trial," the defense lawyers assert.

Rhode Island's Rules of Professional Conduct state that "a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding."

The rules also prohibit lawyers from making any pretrial statements about "the character, credibility or reputation" of a suspect in a criminal investigation, or -- in criminal cases that could result in incarceration -- "the possibility of a plea of guilty to the offense" or a person's refusal or failure to make a statement.

Courts may impose sanctions against lawyers ranging from fines to dismissal of lawsuits and criminal charges. The Derderians' lawyers are asking Darigan to publicly admonish Lynch or impose "a variety of other sanctions," including "a conditional order of dismissal if any further violations are committed by the attorney general or anyone associated with the prosecution of this case."

Prof. Andrew Horwitz of the Ralph R. Papitto School of Law at Roger Williams University said he thinks Lynch's comments have been "out of bounds" and that the defense lawyers' arguments are "compelling" and "well-founded."

He said Lynch is in a difficult position because an attorney general "is a politician. As a politician, you're expected to speak and it's very difficult to do that and at the same time be an attorney bound by the rules of ethics prosecuting a very high-profile case."

But Rhode Island's court rules are clear as to "what is or is not acceptable public comment" and "it seems to me," Horwitz said, "that the quotes [the defense lawyers] cite in their brief do appear to violate the ethical rules as I read them."

He noted that a defendant's decision to remain silent is "an exercise of a constitutional right" and "has nothing to do with guilt or innocence."

"I will be surprised if Judge Darigan did not issue an actual order" barring further comment by lawyers in the case, Horwitz said. And if any lawyer violates the order, he or she could be held in contempt. "If Judge Darigan is upset, he could also issue a monetary sanction," the law professor said.

But a conditional dismissal? "That will never happen. I can't imagine a judge could issue an order leaving open the possibility that a case of this magnitude would be dismissed other than on its merits," said Horwitz.