Digital Extra: The Station Fire

Lawyers on both sides of the criminal case are ordered to stop making public comments before a trial.

01:00 AM EDT on Saturday, May 1, 2004

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- Superior Court Judge Francis J. Darigan Jr., who is overseeing the criminal case stemming from The Station nightclub fire, said yesterday he is ordering lawyers from both sides to refrain from making further comments about the case so that an impartial jury can be found for a trial.

The judge said that if the lawyers violate the order, he will consider sanctions, which could include a monetary fine, imprisonment or even dismissal of the charges.

He said lawyers may comment on administrative issues such as scheduling matters and the exchange of information that is ongoing in preparation for trial.

But Rhode Island's Rules of Professional Conduct, he said, prohibit the lawyers from talking about things such as condemning anyone charged, elaborating on theories of defense or making "overt protestations of innocence beyond a bare minimum."

David C. Vladeck, a First Amendment expert who is an associate professor at Georgetown University Law Center, said Darigan's order amounts to "a gag order" but that the judge was "acting within his rights" in clamping down on the lawyers.

"This is an issue that recurs all the time because, obviously, in a criminal trial, a lot of interests need to be balanced. The public has a legitimate and compelling interest in finding out what's going on" in such high-visibility cases, Vladeck said, but "the judge is legitimately worried about the Sixth Amendent guarantees of a fair trial" for the defendants.

"There is a legitimate concern regarding prejudice of the potential jury pool," the law professor said. He noted that the U.S. Supreme Court, in a 1991 case, authorized trial judges to enter such gag orders in high-visibility cases to safeguard the fair-trial rights of a criminal defendant "even if the defendant opposes it."

The case Vladeck is referring to is Gentile v. State Bar of Nevada. The nation's highest court said in that case that lawyers' "extrajudicial statements pose a threat to a pending proceeding's fairness, since they have special access to information through discovery and client communication, and since their statements are likely to be received as especially authoritative." As a result of that ruling, Vladeck said, judges may prohibit comments "that are likely to influence a trial's outcome or prejudice the jury venire, even if an untainted panel is ultimately found." The court said that such curbs on lawyer comment amount to "narrowly tailored" restraint of speech since they apply "only to speech that is substantially likely to have a materially prejudicial effect . . . and merely postpones the lawyer's comments until after trial."

Darigan announced his decision to curb most pretrial comments by the lawyers representing the owners of The Station and by state prosecutors after both sides filed papers accusing each other of violating the Supreme Court's Rules of Professional Conduct in commenting on the fire and the subsequent criminal case.

ONE HUNDRED people died as a result of the Station nightclub fire on Feb. 20, 2003, and more than 200 were injured.

Michael and Jeffrey Derderian, the owners of The Station, and Daniel Biechele, the tour manager of the rock band Great White, who set off pyrotechnics that started the inferno, each face 200 counts of involuntary manslaughter.

Earlier this week, lawyers for the Derderians asked Darigan to issue sanctions against Attorney General Patrick C. Lynch because of comments he has made to the media about the Derderians and the fire.

They asserted in court papers that the attorney general's comments have prejudiced the Derderdians' right to a fair trial. They blasted Lynch for chiding the Derderians for refusing to cooperate with investigators in the days right after the fire and, more recently, for referring to the fire, in comments to the Boston media, as a "perfect storm -- gross negligence, disregard for human life by action and inaction" and "a combination of stupidity [and] greed."

The defense lawyers also criticized Lynch for talking about a possibility of a plea bargain being entered in the case, which he said would have to "involve jail."

Yesterday, in court papers, the attorney general volleyed back, accusing two of the Derderians' lawyers -- former Attorney General Jeffrey B. Pine and Boston lawyer Richard M. Egbert -- of violating the Rules of Professional Conduct in their own comments to the media.

Lynch noted that Pine, on a Channel 12 Newsmakers program last August, "discussed the status of the grand-jury investigation" that preceded the indictments in the case and "expounded exhaustively [among other matters] about what he claimed his client knew or did not know about the perilous qualities of polyurethane foam, whether he knew pyrotechnics would be used on Feb. 20, 2003, at The Station [and whether he personally approved it], and whether there were more than the maximum number of people in the club" on the night of the fire.

Lynch said that Pine commented "unequivocally and at length about his opinion regarding the guilt or innocence of his client in a criminal proceeding" and "shamelessly offered his opinion as to the guilt of a suspect other than his client in the investigation . . ."

The attorney general criticized Egbert for telling Journal columnist M. Charles Bakst that he took on Michael Derderian as a client because "people are entitled . . . to not have the governmental train run them down." Lynch said this comment violated ethics rules because he says it implies that "a mindless government is either willfully or recklessly bent on trampling the rights of his clients."

LYNCH TOLD DARIGAN in the court papers that he would forgo asking for sanctions against the defense lawyers at this point.

But he asked Darigan to enter an order that would preclude lawyers from both sides "from making public commentary about the indictments in this case . . . until the last count of the last indictment is disposed."

In taking the bench after a half-hour chambers conference, the judge said the lawyers for both sides had agreed to abide by an order curtailing comment about the case.

"Both the prosecution and the defense have agreed that publicity of the nature that we have been discussing here . . . is counterproductive to this whole process," Darigan said.

"The court has no intention at this time of sanctioning the attorney general" or entering an order requested by the defense that would dismiss the case if Lynch continued to make "inappropriate" and "inflammatory" comments, as the defense had requested.

But he said he would enter an order that will bar public comment by lawyers for both sides. The lawyers, he said, would meet with him again on July 12 to discuss pretrial matters in chambers.

As a handful of the fire victims' families, some carrying photographs of their lost loved ones, watched from the spectators' gallery in Darigan's courtroom, the judge talked about the "profound effect" the fire has had in the Rhode Island community and the many lives it has touched.

He asked the media to "show some forbearance in reporting on this case."

Darigan said he did not want to imply that he is trying to curb reporting, but he told reporters to "keep in mind to the best of your ability to do so that the more information that is provided to the Rhode Island public, whether it's necessary, unnecessary, of human interest or of substantive content, is going to pose real difficulties to the court in getting a fair and unbiased jury in this case.

"NONE OF US know if this case will end up in a trial," Darigan said, but he said he assumed it would go to trial and it is necessary to find a fair, impartial and unbiased jury to hear the case.

"We have a hundred persons who have lost their lives. They each have family. They each have friends. They each have coworkers and acquaintances around this state, and I can only imagine the nightmare that we are going to have to confront when we have to impanel a jury to listen to these cases," said Darigan.

The judge said he hoped that by this fall, a trial date would be set.

The pretrial stages of the case are being conducted in unusual secrecy. Yesterday was the first public hearing since the Derderians and Biechele were indicted last December. None of the information being exchanged by the parties is being placed in the court file, as is customary in both criminal and civil cases in state courts.

The lawyers have agreed, with the judge's approval, to merely exchange the information between themselves, according to Dyana Koelsch, spokeswoman for the state court system.

Vladeck, the Georgetown law professor, said there is nothing in the U.S. Constitution "that would require criminal discovery to be put in the court file pretrial."

But some of the lawyers representing the fire victims -- four of whom were in Darigan's courtroom yesterday but not allowed to speak -- have expressed frustration with the process and their inability to get information from the state.

The Providence Journal has filed a public-records lawsuit, currently being heard by another Superior Court judge, to try to get Lynch to turn over police and fire records, a list of people known to have been at the nightclub the night of the blaze, and records of where the bodies were recovered.