Killer Show

by John Barylick

  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.

  Unindict
ed, and completely unmentioned, were Denis Larocque and Jack Russell.

  The Derderians were already in more than a little legal trouble. Days after the fire, it was determined that they had never purchased workers’ compensation insurance for the employees of The Station. (The brothers were apparently aware of the concept of workers’ compensation coverage, because they did buy it for the few employees of their gas station.) Notwithstanding their earlier assurances to Paul Vanner, the Derderians had simply ignored the legal mandate to provide insurance for their workers — insurance that would have paid, among other things, $15,000 for burial expenses to each of the families of Tracy King, Steve Mancini, Andrea Mancini, and Dina DeMaio

  “Comp” insurance at The Station was not only mandated by state law — it was required by contracts the Derderians signed with national acts appearing there. Their contract with Eddie Money, for example, required “a policy of Worker’s Compensation Insurance covering all of Purchaser’s employees who are involved in any manner in the installation, operation and/or maintenance of the equipment provided by Artist.” Not to worry, though. The Derderians evidently did not sweat the fine print.

  The Derderians had bigger problems, in any case, than ignoring workers’ compensation laws. The felony indictments that issued from the grand jury proceedings threatened their (and Dan Biechele’s) very liberty. The factual bases for those criminal charges were that Biechele set off the illegal pyro, and that the Derderians allowed illegal pyro, overcrowding, and flammable foam wall covering at the club. It didn’t matter that Michael Derderian happened to be vacationing in Florida on the night of the fire. There was strong precedent for his criminal liability in absentia. That precedent was an even worse New England nightclub fire.

  When Boston’s Cocoanut Grove nightclub burned in 1942, killing 492 patrons, its owner, Barnett Welansky, was in the hospital with an illness. Although the club employed about eighty persons, its business was completely dominated by Welansky, who owned all its corporate stock and took all its profits. Like the Derderians, Welansky often spent evenings at the club, overseeing his business. He was not, however, present on the night of the fire. That night, a combination of blocked exits, overcrowding, and flammable decorative furnishings resulted in tragedy. However, because the conditions on the night of the fire were no different from those he condoned when he was actually present, Welansky was convicted of involuntary manslaughter and sentenced to prison. The parallels to Michael Derderian’s case were striking. Welansky’s case was, as lawyers say, “on all fours” with Michael Derderian’s.

  For his part, Dan Biechele had nowhere to go by way of defense. He had unquestionably committed a misdemeanor when he set off his unlicensed pyro, and that act proximately resulted in one hundred unintended deaths. Accordingly, in May 2006, Biechele agreed to change his plea from “not guilty” to “guilty” on one hundred counts of involuntary (misdemeanor) manslaughter. In exchange, the prosecutor agreed to recommend a sentence of no more than ten years’ imprisonment, the actual sentence to be decided by a judge after a sentencing hearing.

  A sentencing hearing consists of defense counsel’s argument urging leniency, the prosecutor’s argument for strong punishment, and the defendant’s own statement, should he wish to make one. In Rhode Island, it may also feature “victim impact statements,” an opportunity guaranteed by the Rhode Island Constitution, whereby crime victims may describe to the court the crime’s impact on their lives. Theoretically, the court may take such statements into consideration when meting out its sentence. Victim impact statements in the Station case would prove to be both heartrending and frustrating.

  On May 8, 2006, the day of Dan Biechele’s sentencing hearing, a phalanx of TV network trucks poked their dozen broadcast antennae skyward from parking spots along the driveway of the new Kent County Courthouse. On the roof of the nearby parking garage, tents were erected from which reporters could do stand-ups with the steel-and-glass courthouse over their shoulders. In the building’s largest courtroom, and in overflow rooms fed by audio and video monitors, families of Station victims gathered, waiting to be heard. To say that every television in the state was tuned to the proceeding would not be an exaggeration. Rhode Island’s citizens were transfixed, reliving the anguish of the fire — but unable to turn away.

  When Dan Biechele entered the courtroom, he looked nothing like the road manager for Great White of three years earlier. Gone were his shoulder-length bleached hair, goatee, and sunglasses; in their place, a suit, tie, and haircut suitable for a Rotary Club meeting.

  Before hearing victims’ impact statements, the judge laid out the ground rules: One speaker per victim. Five minutes per speaker. Speakers would be permitted to discuss only the impact that the loss had on them — not the culpability of the defendant, the absence of a trial, or their opinion of the proper punishment to be meted out. A child’s life was to be summed up in five minutes; a parent’s love, the same five.

  Then the victim statements began — and continued for two full days. Evelyn King, widow of club bouncer Tracy King, was stoic. “Once I realized the severity of the fire, I knew I would never see him alive. I knew that my husband would never leave the building if there were people inside.” She was right.

  A burn-scarred Gina Russo spoke of her fiancé, Albert Crisostomi. They had been turned away from the band door by a bouncer, and only Gina survived. “[My fiancé] was taken away by somebody without any common sense,” lamented Russo.

  The father of Jimmy Gahan, the twenty-one-year old college DJ who had interviewed Jack Russell the evening of the fire, told the hushed courtroom that his son would have wanted “some measure of mercy” for the defendant.

  Michael Hoogasian’s sister asked those assembled, “Do you know what it’s like to have two people you love so much die in such a horrific manner they can only be identified by dental records? Have you ever had to call your little brother’s and sister’s cell phones over and over again, until they were shut off, just so you could hear their voices [on the message recording]?”

  Bridget Sanetti’s mother described how her own fifty-eight-year-old mother declined cancer treatment after Bridget’s death, choosing to join her granddaughter “in heaven.” “I lost my mother, too,” she said softly.

  Despite the judge’s admonition, several speakers had to be cut off when they spoke about what kind of sentence they wanted, or about Biechele, personally. They choked back tears and stifled anger during the two wrenching days of testimony. At home, in schools, and at their jobs, Rhode Islanders watched and cried along with them. It was the fire, all over again.

  The sentencing itself took place on day three. First, Assistant Attorney General Randall White spoke, urging the court to impose the maximum ten-year sentence because of the massive loss of life and to “send a message.” Next, Dan Biechele’s attorney, Thomas Briody, gave an impassioned hour-long speech, stressing that his client had “committed a misdemeanor that night without any way of knowing the stage had been set for what the Attorney General is calling the perfect storm.” In an apparent reference to Jack Russell, the lawyer contrasted Biechele’s contrition with “the big rock ’n’ roll singer, the man who abandoned my client.” Briody urged no incarceration for Biechele.

  Next came Biechele’s turn to speak. He rose, and haltingly read from a prepared statement, pausing several times to choke back tears and regain his composure. His apology was heartfelt and devoid of any pretense that it could, or should, engender forgiveness on the part of fire victims. “I never wanted anyone to be hurt in any way. I never imagined that anyone ever would be. . . . I don’t know that I’ll ever forgive myself for what happened that night, so I can’t expect anybody else to. . . . I’m so sorry for what I have done, and I don’t want to cause anyone any more pain. I will never forget that night, and I will never forget the people that were hurt by it. I . . . am . . . so . . . sorry.”

  And with that, Biechele sat down, covered his face with his hands, and sobbed. No one thought
he cried for himself.

  Then, it was time for Judge Francis J. Darigan’s decision, the only speech that really mattered. Judge Darigan reviewed the public policy goals of punishment, and the factors he considered in reaching his difficult decision. He noted Biechele’s exemplary school and work histories, as well as the defendant’s sincere remorse. The judge explained how Biechele had handwritten individual letters of condolence and apology to each victim’s family. He continued, “Over the last two days I have heard the virtual voice of Rhode Island lamenting the loss of 100 of its very talented, hard-working and fun-loving young men and women.”

  Then, Judge Darigan dealt with the nut of the problem. At bottom, a relatively minor offense had resulted in an incomprehensible loss of life. And that was the rub. “This court must render a sentence taking into account the devastating outcome of this crime; however, the law requires that the sentence be predicated on the nature of the offense, and not solely on the basis of the outcome of it. . . . Finally, it is most important to note, and admittedly hard for some to understand or distinguish, that the commission of this crime was totally devoid of any criminal intent on the part of the defendant.”

  Asking Biechele to rise and stand before him, the judge continued,

  The greatest sentence that can be imposed upon you has been imposed upon you by yourself; that is, having to live a lifetime knowing that your actions were a proximate cause of the death of 100 innocent people. This Court can only fashion a sentence according to law and not according to the results of your actions. Any attempt by me or others to correlate any sentence imposed with the value of these lives . . . would be a dishonor to the memory of the victims of this tragedy.