Digital Extra: The Station Fire

Superior Court Judge Francis J. Darigan Jr. cites a lack of room in the courthouse; some legal experts say this is not a good enough reason to shield documents from public view.

01:00 AM EDT on Saturday, October 30, 2004

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- Volumes of information in the criminal case that has been brought against defendants charged in the Station nightclub fire are being kept secret -- contrary to usual procedure -- because the presiding judge says there isn't enough room in the courthouse to store the material.

The material that Superior Court Judge Francis J. Darigan Jr. is keeping from public view includes statements of all state witnesses who are likely to testify at the criminal trial of the nightclub's owners, Jeffrey and Michael Derderian, and Daniel Biechele, the former tour manager of the rock band Great White who set off the pyrotechnics that started the deadly fire. According to the public court record, these statements were mailed by prosecutors to defense lawyers Oct. 22.

Also being kept out of the public court record are summaries of "promises, rewards and inducements" that were given to six people who were not charged in the case, including three members of Great White -- lead singer Jack Russell and musicians Mark Kendall and Eric Powers -- and Barry Warner, the person who sold the Derderians soundproofing foam that caught fire when the pyrotechnics were lit. Defense lawyers have also received this material within the last week.

Two law professors at the Ralph R. Papitto School of Law at Roger Williams University yesterday criticized Darigan for failing to place these materials in the public record. They said the level of secrecy surrounding the discovery process in the high-profile criminal case seems both unprecedented and unwarranted -- especially since the defendants' trial isn't expected to be held for at least a year.

Professors David M. Zlotnick, a former federal prosecutor, and Andrew Horwitz, a former public defender, said that a lack of storage facilities "isn't a good enough reason" to keep the material secret. Both also said that the judge's decision not to file the material in the public court file -- where members of the media, fire victims and their families could view it -- runs contrary to the usual procedure in Rhode Island Superior Court.

Zlotnick said Darigan's decision to keep the pretrial discovery materials private "raises red flags for journalists and for all those who watch the criminal-justice system."

"Saying it's inconvenient for the clerks, that's never a good enough reason to keep information from the public that normally is public," said Horwitz.

One hundred people died in the nightclub fire on Feb. 20, 2003, and more than 200 others were injured in the blaze.

The Derderian brothers and Biechele each face 200 counts of involuntary manslaughter. All have pleaded not guilty.

Zlotnick and Horwitz acknowledged that there are legitimate reasons for judges to keep certain material out of the public domain: a concern over prejudicing a defendant's right to a fair trial, and privacy interests of an individual witness.

But they say that if a Rhode Island judge intends to keep material out of the court file -- where the practice has been to file it in the public domain -- the judge should hold a hearing and let the media make an argument as to why the material should not be kept secret.

"Let's have a debate over whose rights should win," said Zlotnick. "There are two equally important constitutional rights" at stake, he said -- the defendants' right to a fair trial and "the right of the public to access to public information."