Digital Extra: The Station Fire

Prosecutors fight back upon learning that lawyers for the nightclub's owners have interviewed members of the statewide grand jury that indicted the Derderians.

01:00 AM EDT on Tuesday, May 10, 2005

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- Prosecutors in The Station fire case launched their offensive yesterday against claims of grand jury irregularities, arguing that lawyers for the nightclub's owners, 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 Feb. 20, 2003, fire at the West Warwick club that killed 100 people and injured more than 200 others.

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

But in court papers filed yesterday, 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 chambers with lawyers for both sides, Superior Court Judge Francis J. Darigan Jr. said 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.

Lawyers for the Derderians -- who were in court yesterday -- 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 instead was 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 yesterday, prosecutors assert that some of the grand jurors who have been questioned by the Derderians' lawyers have complained to the attorney general's office 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.

In their court filing, the prosecutors argue that the Derderians' proposed plan to continue interviewing the grand jurors is both "unnecessary and unwarranted" and "constitutes an unjustified invasion of their privacy."

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 who set off the pyrotechnics that sparked the fire -- sat for 35 days over 10 months, according to the office of Attorney General Patrick C. Lynch.

All together, they say, 22 grand jurors heard the case, 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 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.

Prosecutors 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 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 out others who had been absent. Deliberations are not recorded.

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.

DARIGAN announced after his meeting with the lawyers that he 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.

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.