Digital Extra: The Station Fire

Prosecutors must give the defendants most of the remaining polyurethane foam, which had been used for soundproofing the nightclub's walls, for testing.

01:00 AM EST on Tuesday, December 6, 2005

BY PAUL EDWARD PARKER
Journal Staff Writer

PROVIDENCE -- In a series of rulings yesterday, the judge presiding over the Station nightclub fire criminal case refused to dismiss any of the 200 manslaughter counts against the three defendants.

Superior Court Judge Francis J. Darigan Jr. also ordered prosecutors to give the defendants most of the polyurethane foam, which was seized from the basement of the ruined West Warwick nightclub, that the state still has. The defendants will use the foam to conduct tests, the nature of which has not been divulged to prosecutors, in preparing their defense.

On Feb. 20, 2003, the rock band Great White took the stage as sparks from fireworks showered The Station's walls. The fireworks ignited polyurethane foam that had been installed on the walls as soundproofing after noise complaints from neighbors. Aided by the foam, fire spread rapidly through the building, killing 100 people and injuring more than 200 others.

Darigan ordered the state to provide 65 square feet of foam to Michael A. and Jeffrey A. Derderian, the brothers who owned the club. The judge also ordered the state to give 5 square feet to Daniel Biechele, the Great White tour manager who set off the fireworks. That leaves 5 square feet in the state's possession.

The defendants were each charged with 200 counts of involuntary manslaughter, two counts for each of the 100 people who died. They were charged with manslaughter through criminal negligence and manslaughter through committing a misdemeanor that resulted in death. Although charged twice for each death, they could only be convicted and sentenced on one charge.

In one request to the judge, the Derderians and Biechele sought to have all 200 counts dismissed. In another request, they wanted the 100 misdemeanor manslaughter counts dismissed.

In asking that the entire case be dismissed, the Derderians and Biechele alleged misconduct by the attorney general's office in presenting the case to a grand jury. The defendants said prosecutors withheld evidence that weakened the state's case and misled the grand jury when a juror asked whether any such evidence existed.

At the center of the misconduct allegations was a fax that prosecutors received anonymously that said American Foam Co., which sold the polyurethane foam to the Derderians, hid the fact that it was flammable. After presenting the case to the grand jury, prosecutors learned the fax had come from Barry Warner, a former salesman for American Foam who lived near the club.

Judge Darigan noted in his ruling that grand jury proceedings are one-sided and that prosecutors are not required to present evidence that supports a defendant's interest. Such a two-sided presentation is reserved for the trial, Darigan wrote. Additionally, Darigan cast doubt on whether Warner's fax is all that helpful to the defendants.

Darigan also ruled that a grand juror's general question about the existence of any evidence favorable to the defendants does not require prosecutors to search for and present such evidence.

A spokesman for Attorney General Patrick C. Lynch welcomed the ruling. "It's frustrating when allegations of misconduct are raised and immediately given credence," spokesman Michael J. Healey said. "In rejecting the defendant's motion to dismiss, however, the court is clearly stating that those allegations were and are groundless and unfounded."

The Derderians also argued the charges should be dismissed because, they contend, grand jurors had excessive absences. Darigan ruled the absences were not excessive.

In seeking to have the misdemeanor manslaughter counts dismissed, the defendants raised a variety of arguments. Those included saying that the misconduct with which they are charged does not constitute a misdemeanor under state law, that the law was too vague and that their misconduct did not rise to the level of justifying manslaughter charges.

Darigan rejected those arguments, saying it would be up to the Rhode Island Supreme Court to decide whether certain misdemeanors do not rise to that level.