Killer Show: The Station Nightclub Fire (34 page)

The
Providence Journal
reported that Brian Butler “stopped taping and
came to the aid of trapped patrons shortly after the fire heated up.” Actually, on the video, Butler pauses for approximately three seconds immediately after exiting the front doors of the club. With the exception of that brief pause, Butler filmed continuously until fire completely engulfed the building, never putting down his camera to reach for a single patron seen struggling to escape from a door or window. Butler first set his camera down six minutes after he exited the building, in order to phone his television station and report that he “got it all on tape.”

Triton Realty Company’s lawyer claimed that the landlord was unaware that the building had become a nightclub. Triton believed, according to its attorney, that “there was food and maybe some light entertainment from time to time.” Evidently, the landlord didn’t listen to radio or read the newspaper. For years, the Filling Station had billed itself as “Rhode Island’s Number One Party Club,” advertising national and local acts. Moreover, under their Triton Realty lease, the Derderians were required to report monthly sales to the landlord by category. Their March 2002 report to Triton stated, “Food: $1,000. Liquor: $6,900.
Other:
$8,100.”

The most blatant incidents of turning (or covering) tail involved those who had the most to lose. The Derderian brothers filed for personal bankruptcy two years after the fire, shielding their basic assets from creditors — including victims of the fire. Triton Realty transferred millions of dollars in properties to related limited partnerships right after the fire, while its principal, Raymond Villanova, deeded his family home to his wife, alone. Corporate behemoth Shell Oil Company, which had earlier denied the Derderians approval to purchase the gas station where Erin Pucino worked (the brothers bought it anyway, using the prior owner as a “front”), demanded that the brothers’ ownership be terminated. Shell wanted no connection to the Derderians after it learned that Station nightclub flyers and coupons had been distributed at their gas station in advance of the Great White concert.

Anyone with deep pockets could not distance himself or itself fast enough, or far enough, from The Station, the Derderians, and Great White. In short, everyone hunkered down and shut up.

That is, everyone except Dan Biechele. Great White’s road manager, who had set off the fatal pyrotechnics, cooperated with the police investigation from the moment of the tragedy onward. Visibly tortured by what his carelessness had wrought, Biechele told all, and immediately. And in that, he distinguished himself from all the other miscreants.

CHAPTER 23

CRIME AND PUNISHMENT

ONCE THE BASIC FACTS OF THE STATION FIRE
became known, there was a public outcry, fueled by talk radio and media reports, for criminal prosecution of those responsible for the tragedy. In the weeks following the fire, an additional four hospitalized victims died of their injuries, raising the total fatalities to one hundred. Considering the unlicensed pyrotechnics, the overcrowding, and the use of flammable foam as soundproofing, surely several people would go to jail — and for a long time — for taking so many innocent lives.

The immediate objects of this wrath were the Derderian brothers, town fire inspector Larocque, and Great White’s alter ego, Jack Russell. However, criminal justice would prove to be slow and elusive in the Station fire case, leaving far too many questions unanswered for many victims’ families.

The public appeared divided, paradoxically, between two camps: the majority, rolling out the tumbrels and calling for heads to roll, and a small minority, who wondered aloud how “an accident” could give rise to criminal prosecutions. The first was characterized by Christopher Travis, who escaped from the blaze. “They ought to do life,” he urged. The minority position was exemplified by one Internet rant: “I cannot understand why someone/anyone should go to prison for the Station fire. Yes, people lost their lives, but it was an accident. . . . God called for those who past [
sic
] at the Station.”

To forgive may be divine, but it was certainly not the prevailing post-fire sentiment in Rhode Island.

The issue of whether anyone would or should be charged with crimes arising from the fire called into question the nature of crime itself and the purpose of prosecution, generally. A crime is, by definition, an offense against the people of a state as a whole. That is why criminal cases are captioned, “
People of the State of California
vs. John Doe,” or, simply, “
State of Rhode Island
vs. John Doe.” This is as distinguished from
civil
wrongs, which are offenses against individuals, for which the latter may file a civil action. The
only person who may prosecute a criminal case is a representative of the state. In Rhode Island, that person is the attorney general.

Whether a conviction should be sought would appear to logically depend upon whether punishment is warranted. This is because conviction of a crime, ipso facto, results in punishment. But what are the purposes of punishment, and would any of those purposes be served in the Station case?

Historically, legal scholars have spoken of five distinct “theories” of punishment: deterrence, incapacitation, rehabilitation, retribution, and denunciation. The first, deterrence, can be specific (as to the charged persons) or general (chastening the public at large). While it’s doubtful that the Derderians, or general public, needed to be deterred from again hanging flammable foam on nightclub walls, public officials could probably have used a wake-up call when it came to inadequate fire inspections.

The second theory of punishment, incapacitation (keeping the criminal out of circulation to protect the public), would also appear inapplicable in the Station case. The citizenry was hardly at risk of Dan Biechele again shooting off pyrotechnics in a nightclub. And while it might be speculated that any number of those involved might be a candidate for rehab of some type, illegal use of pyrotechnics was probably not their greatest risk.

It would appear that the only two purposes of punishment applicable to the Station fire were retribution (punishment simply because the criminal deserves it) and denunciation (expressing society’s disapproval of blameworthy conduct). But they were purpose enough. The public loudly clamored for both.

Crimes generally involve the union of an act with a guilty state of mind — something called
mens rea
(Latin for “guilty mind”). The tricky part is that some crimes do not require actual intent to cause harm. This is where the crime of involuntary manslaughter comes in. It is one of the rare species of crime in which the necessary
mens rea
is established if the defendant was just stunningly careless. States’ criminal codes variously describe this state of mind as “grossly negligent,” “reckless,” or demonstrating “extreme indifference to the value of human life.” Drag racing in a school zone, for example, might qualify.

Some states have a second flavor of involuntary manslaughter for which one may be convicted if one causes loss of life during the intentional commission of a minor criminal offense. Sometimes called “misdemeanor manslaughter,” this crime is itself a felony; it merely
occurs during
the commission of a misdemeanor. For example, discharging a firearm in the air within city limits is a misdemeanor in many states; if the falling projectile randomly strikes and kills someone, a charge of misdemeanor manslaughter might ensue.

Rhode Island’s criminal code contains both the “grossly negligent” and “misdemeanor manslaughter” types of involuntary manslaughter. Both would find application in the wake of the Station fire.

The criminal investigation of the Station fire began with statements taken even as the fire raged, and continued for months thereafter. After most of the investigation was complete, the attorney general faced a decision as to how to charge potential defendants. Rhode Island has two routes for felony charging: informational charging and grand jury indictment. In informational charging, the attorney general files a “criminal information” charging the defendant with one or more crimes. The defendant thereafter has a right to a “probable cause hearing” before a judge in order to determine whether there is sufficient evidence to charge. Alternatively, the attorney general can present evidence to a grand jury, which then either issues a “true bill of indictment,” or not. In the case of the Station fire, the
AG
took the grand jury indictment route.

Indictment by a grand jury has the outward appearance of a citizens’ investigation. It is ostensibly informed by community sentiment and, to that extent, gives the attorney general public relations “cover” for indicting or not indicting someone. In fact, the grand jury process is carefully choreographed, and controlled, by the prosecution team.

A Rhode Island grand jury consists of twenty-three individuals, drawn randomly from lists of registered voters. Grand jurors are committed to be available for as long as eighteen months (not continuously), so that they may hear evidence as to whether crimes have been committed and who may have committed them. Only twelve are needed to constitute a quorum. In the case of the Station fire, Rhode Island attorney general Patrick Lynch wasted no time in convening a grand jury. Six days after the fire, jurors were seated to begin hearing the first of over one hundred witnesses. The process would continue, on and off, for another ten months.

No judge presides over a grand jury. Prosecutors from the attorney general’s department subpoena witnesses to testify, direct the questioning, and advise the grand jurors as to the law. Witnesses are not allowed to have counsel present as they testify; however, they may ask for a recess if they wish to consult their attorney. It is not a freewheeling investigation into all facets of an incident. Rather, the prosecutors begin the process with a good idea of whom they would like to seek indictments against, and for what crimes. They present evidence supportive of indicting those “targets” — and, generally, only those targets.

Grand jury proceedings are conducted in secret; no one but participants
may attend. Transcripts of grand jury testimony remain sealed forever (available to a defendant only if he is actually indicted), the theory being that if there is insufficient probable cause to charge a citizen, then the fact that the grand jury heard evidence against him should not be made public. In the case of the Station fire, however, a special exception was made, and the Superior Court eventually released transcripts of the grand jury proceedings. They provide a rare glimpse into the workings of a little-understood body.

Perhaps the most telling transcripts of the Station fire grand jury proceedings are those of West Warwick fire marshal Denis Larocque’s testimony. He was asked by prosecutors about the history of fire code violations at The Station, as well as his calculations to vastly increase the building’s permitted occupancy. His assertion that he simply didn’t notice the foam on the walls during multiple inspections (while he cited the inward-swinging door upon which it was glued) passed without challenge by his questioners. Larocque’s capacity calculations, also unchallenged, were a muddle of confusion. He was never asked how an
entire building
could be classified as “standing room” when the applicable statute limited such an area to “that part of the building directly accessible to doors for hasty exit.” When jurors themselves sought to cross-examine Larocque on these points, prosecutors jumped in, suggesting that the inspector just read aloud certain statutory sections, rather than directly address the jurors’ questions.

Not surprisingly, when, after ten months of testimony, the jurors were asked if they wanted to hear from additional witnesses, their first response was to ask the prosecution team whether Larocque could be found criminally liable for his actions. No clear answer appears in the published transcripts.

On December 4, 2003, the grand jury voted to return indictments against only three persons: Dan Biechele, Jeffrey Derderian, and Michael Derderian. Each defendant was charged with one hundred counts of involuntary manslaughter (criminal negligence) and one hundred counts of misdemeanor manslaughter — one for each person killed in the fire. Each count carried a maximum penalty of thirty years in prison. Theoretically, Biechele and the Derderians could have all drawn life sentences.

Unindicted, and completely unmentioned, were Denis Larocque and Jack Russell.