Digital Extra: The Station Fire

Lawyers for the Derderians contend that some members of the panel that returned the indictments against the club onwers were absent for major portions of the testimony.

11:26 AM EDT on Friday, May 6, 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 in Superior Court.

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 returned against Michael and Jeffrey Derderian, the owners of the West Warwick nightclub where 100 people died in a fire Feb. 20, 2003.

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

In papers filed Wednesday 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 in 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 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 Stephen Murray, the West Warwick officials who were responsible for inspecting the club for fire-safety code violations and for interpreting applicable codes.

The 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 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.

The defense lawyers filed their papers after getting the court's permission to review grand jury attendance records. It's clear from the filing that they have also interviewed at least some of the grand jurors. The filing is intended to alert the court that they plan to interview more of the jurors.

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.

In a statement issued by his office yesterday, Attorney Genreal Patrick C. Lynch said he "unequivocally" supports his prosecutors' presentation of The Station fire case to the grand jury. "I am confident that we have followed every law, policy and procedure concerning our handling of the grand jury to 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.

SEVERAL COURTS have taken up the issue of grand-juror attendance.

In their filing, the Derderians 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, 12 people voted on the indictment but only 3 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.

BASED ON CASE LAW and Rhode Island grand jury practice, lawyers interviewed yesterday said, it would be hard to get an indictment thrown out on the grand-juror attendance issue.

A grand jury indictment is not a determination of guilt or innocence. The grand jury process is a preliminary proceeding in which jurors are asked to determine whether, based on the prosecution's presentation, there is probable cause to proceed with the case.

"This may be much ado about nothing," Kevin J. Bristow, a Providence criminal defense lawyer who worked for years as a state prosecutor in Rhode Island and New York said yesterday of the Derderians' legal maneuvering. In grand jury cases that span over long periods of time, "it happens all the time where people are absent" for some of the testimony, Bristow said.

Bristow said "the burden is going to be very high for [the Derderians] to get the indictment dismissed" based on the attendance issue. However, he said that if there is proof that some grand jurors informally briefed absentees on crucial evidence, and this was not recorded, "that could be problematic."

When a federal trial judge in California discounted all of the votes of grand jurors who had missed some testimony, finding that a grand juror cannot be considered informed unless he or she attends all sessions in which evidence is presented, 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. This duty could be performed even if a grand juror were 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.

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

It is unclear whether Lynch's office will object to this proposed course of action.

Judge Darigan has scheduled a pretrial conference for Monday morning. It was unclear whether he will take up this issue then or later.

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

Digital Extra: Read the full text of the Derderians' notice of intent to interview grand jurors in the Station fire criminal case, at:

http://projo.com/extra/2003/stationfire/pdf/20050505-derderian-notice.pdf