Digital Extra: The Station Fire

Lawyers for defendants in The Station fire criminal case argue that half the counts are based on violations that can't support manslaughter charges.

01:00 AM EDT on Thursday, October 27, 2005

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- Lawyers for the owners of The Station nightclub and the former tour manager for the band Great White, who are each charged with manslaughter in the deaths of 100 people in a 2003 fire, yesterday asked a Superior Court judge to dismiss half the charges against them before trial.

The club owners, Michael and Jeffrey Derderian, and Daniel M. Biechele, Great White's former tour manager, each face 200 counts of involuntary manslaughter -- two for each death charged under two separate legal definitions of manslaughter.

But in arguments that lasted for more than two hours yesterday, defense lawyers contended that 100 counts against each defendant should be thrown out because, they allege, they are based on misdemeanor permit or code violations that cannot legally support a manslaughter charge. They also argued that the defendants were never given fair warning that these violations could lead to prosecution for manslaughter.

Judge Francis J. Darigan Jr. said he would render a decision at a later date, because "of the magnitude of the issues presented." Even if the motion were successful, the Derderian brothers and Biechele would still each face 100 counts of manslaughter under a separate legal theory.

The defendants currently stand indicted under two theories of involuntary manslaughter: misdemeanor manslaughter -- the subject of yesterday's argument -- and criminal negligence. Each are felonies carrying a potential penalty of up to 30 years in prison.

The Rhode Island Supreme Court has defined involuntary manslaughter as "unintentional homicide without malice aforethought, committed either in the performance of an unlawful act not amounting to a felony or in the performance of a lawful act with criminal negligence."

Under the criminal negligence theory, the indictments allege that the defendants were aware that they were putting people in jeopardy of serious harm, but that they chose to ignore the risks and acted with callous disregard for the crowd's safety. The Journal has found that at least 440 people were inside the nightclub when the fire broke out the night of Feb. 20, 2003.

Under the misdemeanor theory, the indictments allege that the commission of a petty offense unintentionally and directly caused the deaths. The term "misdemeanor" refers to the underlying actions. In the case of the Derderians, the alleged underlying misdemeanor is a violation of a state fire-code regulation that required them to use flame-resistant acoustical material in their nightclub. In the case of Biechele, the underlying misdemeanor is setting off pyrotechnics at The Station without the required permit.

The fire at the West Warwick nightclub erupted after Biechele set off fireworks that ignited highly flammable polyurethane foam that had been installed three years earlier by the Derderians as soundproofing on the walls and ceiling.

In court yesterday, lawyers for the Derderians pointed to previously secret grand jury testimony from the West Warwick fire inspector and a man who sold the Derderians the foam that they argued tends to clear the nightclub owners.

Defense lawyer Thomas Dickinson said that West Warwick Fire Marshal Denis P. Larocque told the grand jury that he'd inspected The Station after the Derderians had installed the polyurethane foam but hadn't noticed the foam on the walls or the door or the ceiling. Thus, the Derderians were never put on notice that the foam was a safety hazard that they needed to remedy, Dickinson said.

Kathleen Hagerty, another lawyer for the Derderians, pointed to the grand jury testimony of Barry H. Warner, the salesman for American Foam who lived behind the nightclub and who sold the flammable foam to the Derderians. Warner, she said, testified that the Derderians had asked to buy "sound foam" from him -- which she said should have been flame retardant. She said Warner testified that he never told the Derderians that they'd purchased "cheap, inexpensive foam" and that there was an option to buy flame-retardant foam instead.

Hagerty also said Warner, a foam salesman for 26 years, testified that the foam delivered to the Derderians had no safety warnings on it and contained no label listing its properties.

Assistant Attorney General William Ferland countered that "ignorance of the law is no excuse" and that simply because the Derderians didn't know the fire code or what they were buying doesn't excuse their actions as nightclub owners.

If you're going to cover the walls of your nightclub, Ferland argued, you have an obligation to know whether the material you're using as soundproofing is flame-retardant and meets the fire code.

Darigan said that for purposes of the defense motions to dismiss, he would take little notice of what Warner told the grand jury. "That's an evidentiary matter" that would be weighed by the jury, he said.

In arguing that the court should dismiss the misdemeanor manslaughter charges against the three defendants, the defense lawyers said that there have been only two such cases that have made their way through the Rhode Island court system in the past 150 years and that both convictions were reversed by the state Supreme Court.

John A. "Terry" MacFadyen, who represents Biechele, asserted that the only reason the state charged the three defendants with misdemeanor manslaughter was "an effort to lessen the requirements of proof -- to eliminate the need to prove gross negligence." He said that courts in states throughout the country have been critical of charging defendants with misdemeanor manslaughter. The trend today, he said, is to do away with this type of manslaughter and it has been abolished in England and about 30 states, including Maine.

MacFadyen said that no one is arguing that the Derderians or Biechele intended to harm any of the nightclub patrons, and "our position is that there can be no conviction for manslaughter absent deliberate intent to harm or kill or at a minimum, criminal negligence." No state, he argued, takes the position that the Rhode Island attorney general's office has taken in this case: that a misdemeanor permit violation resulting in death would justify bringing a charge of misdemeanor manslaughter. He predicted that if the charges were allowed to stand and a jury were to convict the defendants of misdemeanor manslaughter, the Rhode Island Supreme Court would reverse the convictions.

He pointed to a case decided by the Rhode Island Supreme Court in 1912, State v. De Fonti, where the court reversed a conviction for misdemeanor manslaughter in the case of a defendant who'd unwittingly sold poisoned whiskey, which resulted in a death. The court concluded that while the sale of adulterated liquor was a violation of the law, without knowledge of the adulteration, a defendant could not be convicted of misdemeanor manslaughter.

But Assistant Attorney General Randall White said misdemeanor manslaughter is "alive and well" in Rhode Island and is a valid charge in the Station fire case.