Killer Show: The Station Nightclub Fire (36 page)

Unfortunately, someone in Attorney General Lynch’s office got a little too enthusiastic in trying to distance the
AG
from the plea deal and “get out in front of” the story. Before Judge Darigan’s letter could even reach the victims, a letter
from the Attorney General to the victims
was leaked to the press, as a result of which the families first learned the disturbing news from their
TV
s. In that leaked missive, Lynch stressed his disapproval of the sentences the court had decided to impose.

Judge Darigan reacted to the leak with barely contained rage. He distributed his own press release, which began, “The premature leak of the Attorney General’s letter to the media by an anonymous source was unethical, reprehensible, devoid of any consideration for the victims of this tragedy and totally abrogated an agreement reached after weeks of discussion between the parties in this case. This Court sincerely regrets — beyond the Court’s ability to articulate — the shock, anger, disbelief and sense of betrayal some of the families must feel because of the despicable action taken by the anonymous source within the Attorney General’s Office.” The court’s press release particularly stressed the court’s dismay that the first information the victims received about the plea change was the attorney general’s criticism of it.

For the victims, it was a trifecta of disappointment. Bad enough, there would be no criminal trial. Worse yet, many objected to the sentences under the plea deal. As a final insult, any pretense that “victim impact statements” would have an actual effect on sentencing evaporated with the announcement that the judge had already made up his mind.

Nevertheless, September 29, 2006, was set aside for victim impact statements and sentencing of the Derderians. On that overcast morning, the same media horde that witnessed the Biechele sentencing gathered to broadcast twenty-nine victim impact statements from the courtroom. Judge Darigan stated in opening remarks that he did not plan to change his mind about
the sentencing. Not surprisingly, the victim statements that followed were angrier than at Biechele’s hearing — a strange kabuki theater of heartfelt words, knowingly spoken to no avail.

The father of Derek Johnson, who died in the fire, was emotionally overwrought. “I stand here a broken man, lost in a world without my precious son, Derek,” he stated. He asked, “with all due respect to the Court,” that his son’s name be removed from the criminal complaint’s allegations. “Now they only got 99,” he explained, stepping down from the witness stand.

The brother-in-law of Michael and Sandy Hoogasian spoke of his family’s “pain caused by disrespect, apathy and betrayal.” When he criticized the sentence to be imposed, stating, “justice is not being served,” Judge Darigan cut him off, declaring a recess. On reconvening, the judge instructed the speaker to restrict his comments to the effect the victim’s death had on his family, and not to engage in a diatribe against the proceeding — which diatribe the speaker immediately resumed, to loud applause.

The mother of John Longiaru, who died at age twenty-three, stood her ground: “We have been given a life sentence with no opportunity for parole. We all deserve a trial to find out why our loved ones died. A trial would not have been too hard for us. . . . I think it would have been too hard for you, Judge, and for Mr. Lynch.”

Dina DeMaio’s mother tried to voice her frustration with the Derderians’ sentence, but her daughters restrained her, literally covering her mouth and ushering her from the witness stand. Gina Russo turned to Judge Darigan and said, “You have done us a great disservice by not allowing us a trial. This is my life sentence.” The frustration in the room was palpable.

Victims’ disappointment was exacerbated by the Derderians’ respective sentencing statements. They were only obliquely apologetic, expressing sorrow, not for what the brothers did, but “for all the heartache resulting from this tragedy.” Passive voice was the order of the day. “Through a long list of mistakes, including our own, this tragedy occurred,” offered Jeff. And
they
didn’t cause injury; their
business
did: “We realize the business we owned has caused so much heartache and loss.”

Jeff Derderian drew tears from his brother when he sobbed, “There are many days when I wish I didn’t make it out of that building because, if I didn’t, maybe some families would feel better.” In a flourish of self-pity, he added, “To these families, I’m sorry that I did make it out. I know you would have liked it if I died, too.”

Perhaps most curious was Jeff Derderian’s statement that, “regarding the foam, I wish I knew how deadly and toxic it really was.” This is the same
TV
personality, Jeffrey Derderian, who referred to polyurethane foam on-camera as “solid gasoline” in a feature over two years before the fire.

But Jeffrey’s statement paled by comparison to Michael’s in terms of shrugging responsibility. The older brother began, “I’m Michael Derderian. I just want to say how deeply sorry I am
for the role I played
in this tragedy.” (By his account, he didn’t actually
do
anything. He just “played a role.”) Derderian continued, “We fully accept,
as business owners
” — evidently not as individuals — “that
we should not have relied on other people
.” Clearly, those “other people” messed up.

But Michael was just warming up. “I also want to say I’m sorry for not asking more questions about the deadly and toxic foam that we hung on the walls of our business,” he explained, apparently ignorant, as well, of his brother’s
TV
piece. “We were trying to respond to our neighbors’ needs as part of the community” — not “killing two birds with one stone,” as he’d told club manager Tim Arnold upon his return from foam salesman Barry Warner’s house.

The passive-voice “apology” continued: “There is so much pain and heartache
that happened on our doorstep
.” Then, sounding overtones of O. J. Simpson promising to find the “real killers,” Derderian warranted, “We will do everything we can so that every question can be answered to make sure that all the facts, not just some of them, come out, so everyone can understand what happened that night.”

Judge Darigan’s explanation of the men’s sentences followed. First, unlike Dan Biechele, the Derderian brothers would not be changing their pleas to “guilty.” Rather, they would change their pleas from “not guilty” to “nolo contendere” (or “no contest”). While legally the same as a guilty plea in Rhode Island, a “nolo” plea falls short of an admission of guilt. The judge then explained the agreed punishments:

For Michael Derderian, the sentence was identical to Biechele’s: eleven years of a fifteen-year prison sentence were suspended, with only “4 years to serve” (eligible for parole in sixteen months). His confinement would be nightly in a minimum security (open-access) facility, with daily work-release to attend a private-sector job.

Jeffrey Derderian’s sentence was slightly different. His
entire
prison sentence was suspended, and he was ordered, instead, to perform five hundred hours of “community service.” In criminal law parlance, he would “walk.”

Because the public had already had several weeks to ruminate, and rant, over the Derderians’ sentences, the mood in the courtroom immediately following the sentencing was numbness, rather than outrage. To many, the
Derderians’ sentences were another example of the “Rhode Island shuffle” — shorthand for state action that would never do more than disappoint. It was bad enough that the Derderians appeared to get off with a wrist-slap, but what about Denis Larocque? And what about Jack Russell?

As for Larocque, the reasons why he was not charged were never publicly disclosed. However, he may have been the beneficiary of a Rhode Island statute providing that fire marshals “shall be free from liability” for acts or omissions while “acting in good faith” during the performance of their duties. While the legislative intent behind the law (as exemplified by the single reported case interpreting it) was probably to shield fire inspectors from civil lawsuits when they
actually shut down
a dangerous business, its broad language might be construed to confer immunity from criminal prosecution when an inspector completely overlooked hazards “in good faith.”

If the fire marshal immunity statute underlay the attorney general’s decision not to seek an indictment against Larocque, it was never enunciated by him. Had he explained this legal impediment to prosecution, perhaps the public would have better understood Larocque’s absence from the dock.

Instead, Lynch relied on a smokescreen of hyperbole. Six years after the fire, the attorney general began his own run for governor. Responding to criticism over not indicting Larocque, the
AG
brayed, “Don’t you think that politically it would have been better for me to indict Larocque? But, constitutionally? Ethically? Morally? All grossly inappropriate.” As to what “constitutional, ethical, or moral” dilemmas Lynch grappled with in deciding not to seek Larocque’s indictment, he failed to explain. In reading how protective Lynch’s prosecutors were of Larocque before the grand jury, however, it appears that the decision was made early on.

It’s not a leap to surmise that two other considerations may have played a part. The first is that elected lawmen don’t like to indict people, and then lose publicly at trial, even if on a “legal technicality” like the definition of “good faith performance of duty” in the immunity statute. All that the voters remember is that an indicted suspect “got off” on the
AG
’s watch. Second, some prosecutors just find it hard to charge a “uniform” with a crime, whether that uniform is a cop’s jacket or a fireman’s turnout coat. In law enforcement circles, there is sometimes an attitude of “us” (public safety folks) and “them” (everybody else). And the former get a pass more than we’d like to think.

As to why Jack Russell was not charged with a crime, even less is known. Title 11, Chapter 13, Section 1 of the Rhode Island General Laws, the penal law that formed the basis for Dan Biechele’s misdemeanor manslaughter conviction, states that it is a misdemeanor for anyone to “possess or . . . use”
certain fireworks without required permit. Did Russell “possess or use” the fireworks that ignited The Station? The answer may lie (as it did for the Cocoanut Grove’s owner) in the degree of control Russell exerted over the enterprise that was Great White. This is because “constructive possession” is generally recognized in criminal law. Under this concept, a person need not have actual physical possession of contraband such as a weapon or drug in order to be convicted of its possession, as long as he knows of its presence and has the power and intention to control it.

The contract documents found after the fire in Dan Biechele’s briefcase establish beyond question that the business enterprise called “Jack Russell’s Great White” was a creature created, and controlled in all respects, by Jack Russell. He alone agreed to where and when the group would appear, what songs it would play, how much it would be paid, what it would eat in the dressing room, and, by necessary implication, whether it would use pyrotechnics in its show. The band’s engagement agreement trumpeted: “
JACK RUSSELL
(hereinafter referred to as “Leader”)
shall at all times have complete supervision, direction, and control
over the services of his personnel on this engagement and expressly
reserves the right to control the manner, means, and details of the performance
of services to fulfill the entertainment requirements.”

Yes, Dan Biechele, Russell’s employee, threw the switch. But nothing happened in Great White’s show without Russell’s say-so. If there was any principled reason why Jack Russell was not charged criminally in this matter, it was never publicly discussed by Rhode Island’s attorney general.

Four months before the 2010 Rhode Island gubernatorial primary, Attorney General Patrick Lynch, behind in the polls and lagging in fund-raising, announced his withdrawal from the governor’s race. Lynch’s departure meant that he would not have to answer hard questions about Denis Larocque or Jack Russell on the campaign trail.

At least one person was ready to ask them. David Kane was the father of the Station fire’s youngest victim, eighteen-year-old Nick O’Neill. Kane had publicly pledged to spend any money awarded him for Nick’s death to deny Patrick Lynch’s bid for governor. That would not now be necessary.

Lynch’s term as attorney general expired in January 2011. That month, workmen removed a bronze plaque that Lynch had affixed to the street-facing brick wall of his department’s headquarters in 2004. With no apparent irony, it quoted Stan Lee, the creator of Spiderman: “With great power comes great responsibility.”

CHAPTER 24

“FIRST, SURVIVAL ; THEN, FUNCTION ; THEN, COSMETICS”

THE STATION FIRE CRIMINAL PROSECUTIONS
were not completed until more than three years after the tragedy. Over that period of time, it might be understandable if some people lost full appreciation for the personal toll exacted by the defendants’ criminal negligence.