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DA: No criminal charges in Back Bay fire that killed two firefighters

Suffolk County District Attorney Dan Conley says the contractors who sparked a fire that claimed the lives of Lt. Lt. Edward Walsh and Firefighter Michael Kennedy were truly careless, but they weren't reckless, the standard for bringing criminal charges against them.

Conley said prosecutors could not even bring charges against them for failing to obtain a permit for welding work on the windy day, because investigators could not prove whether the fire resulted from welding, which would have required a permit, or grinding down a piece of a wrought-iron railing, which, while it can produce sparks, does not.

Conley this morning announced the results of a year-long investigation into the March 26 fire at 298 Beacon St. by his office's chief homicide prosecutor, BFD arson investigators, BPD homicide detectives and lawyers with expertise in arson investigations.

Edward Walsh and Michael Kennedy made the ultimate sacrifice while saving lives and property from a fire that engulfed an entire building in the middle of a residential neighborhood. This decision in no way detracts from the bravery of their actions or the tragedy of their loss. The standard for criminal prosecution in a case like this is recognizing a grave risk and choosing to run that risk. The investigation revealed actions that were irresponsible and even careless, but not willful, wanton, and reckless as our courts have defined those terms. As a result, the facts, the evidence, and the current state of Massachusetts law do not support criminal charges.

According to the report, two workers from D&J Ironworks realized around noon that day that one of the pre-fabricated wrought-iron railings they were installing in the rear of neighboring 296 Beacon didn't fit, so they started cutting and grinding and welding the railing:

The more experienced of the two performed those modifications while the other held a piece of wood in place to contain the sparks.

At some point, the evidence suggests, either a spark from the cutting and grinding or liquid metal runoff from the welding traveled from the work space to a wooden shed that extended out from the rear of 298 Beacon. This heat source made its way beneath the wall of the shed, which was old, dry, partially rotted, and highly combustible. The sparks or slag, the flammable material, and the gale-force winds that day combined to create a fire inside the shed that went undetected by the workmen or anyone else outside.

About two and a half hours after their arrival, the workmen smelled something burning and saw smoke coming from the base of the shed near where it joined the building’s brick exterior. The fire was well under way by this time and the workers tried to put it out using snow, but to no avail. They did not use the fire extinguisher that was present on their truck, but this likely had no effect on the spread of the fire, which had been growing inside the shed for half an hour or more.

Both workers told investigators that they shouted to tenants on the rear fire escape, trying to warn them of the danger. This was consistent with some witness statements that they were yelling in the rear parking lot. The men did not call 911, claiming in interviews that they had no cell reception in the rear of the building. This was consistent with records showing text messages the men had sent their employer when they couldn’t get a cell signal.

Finally, the workers did not speed away from the scene as had been reported in the days following the fire. They moved their truck away from the shed, but photo evidence proves that they were still close by well after firefighters arrived – and one firefighter recalled a man in a jacket like the ones worn by both workmen waving him toward the rear of 298 Beacon St. and a tenant on the rear fire escape.

Conley said that with no evidence the two set the fire on purpose, investigators looked at the possibility of charging them with involuntary manslaughter for the firefighters' deaths.

That charge requires proof beyond a reasonable doubt that a defendant acted - or failed to act - with conscious disregard of a known risk of death or serious injury. The risk must be apparent and the defendant charged must willfully choose to run that risk rather than alter his conduct.

But a 1944 Supreme Judicial Court ruling - on the Cocoanut Grove fire - held that "there is in Massachusetts no such thing as criminal negligence."

Prosecutors also considered charging the workmen and/or their employer with a criminal violation of the state fire code for failing to secure a permit for the metalwork performed at the scene. But by statute, this, too, would require proof of wanton and reckless conduct. Moreover, while the welding would have required a permit, the grinding would not have – and because of the extent of the fire, it can never be known for sure which action led to the blaze.

Conley concluded:

We cannot in good faith seek criminal charges for an accident, even one with consequences so tragically devastating. Some 60 years of Massachusetts jurisprudence have made clear that negligence, even gross negligence, is in the hands of our civil courts.

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a fair and just ruling

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Dan Conley sucks at stuff like this. No cell signal, so they couldn't call 911? What? More like they didn't want to get in trouble. This would have been a perfect time to retest that bullshit, outdated Coconut Grove reasoning, but Conley didn't have the stomach for it.

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You might want to read this part again:

Both workers told investigators that they shouted to tenants on the rear fire escape, trying to warn them of the danger. This was consistent with some witness statements that they were yelling in the rear parking lot. The men did not call 911, claiming in interviews that they had no cell reception in the rear of the building. This was consistent with records showing text messages the men had sent their employer when they couldn’t get a cell signal.

Finally, the workers did not speed away from the scene as had been reported in the days following the fire. They moved their truck away from the shed, but photo evidence proves that they were still close by well after firefighters arrived – and one firefighter recalled a man in a jacket like the ones worn by both workmen waving him toward the rear of 298 Beacon St. and a tenant on the rear fire escape.

To me this reads like they stayed at the scene, pointed out the fire, spilled their guts to police, and had evidence that backed up their story. That's 10x better than what those guys did in Worcester, where 6 firemen died, and the Worcester perps walked. So what makes you think something has changed between 1999 and now?

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You mean "two mentally retarded homeless people who weren't able to understand what they did".

The fire department refused to help the cops press charges and said that they would have had to search the building for other squatters anyway, even if they knew that these two were out. The place was a fire trap and the owner did little to prevent the tragedy.

These were both IQ=50-75 people dumped into the street who sought shelter and then panicked. The woman was sufficiently retarded that she was adopted, along with their child, because she was not competent to live on her own.

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... but certainly morally careless.

Be it from grinding or welding, sparks are created and ride the winds. They should have take appropriate care. Especially since they were professionals.

Which brings up the questions are they (both the workers and the company) still licensed? Can't the licensing board take some action?

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Apparently it's difficult to prove. In NYC, they are dealing with this right now after the explosion that leveled 3 buildings and killed 2 people.

From Friday's New York Times

The Manhattan district attorney’s office said an investigation into the source of the collapse was underway. But such undertakings tend to be complex, and any possible criminal charges are likely to be a long way off. Charges against people linked to a crane collapse on the Upper East Side that killed two construction workers in 2008 were brought two years later; the owner of the crane company was charged with manslaughter and was acquitted. Two years after two firefighters died during a fire in the Deutsche Bank building in Lower Manhattan in 2007, three men were indicted on a manslaughter charge; all were acquitted in 2010.

http://www.nytimes.com/2015/04/19/nyregion/after-manhattan-explosion-fam...

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Come up with some laws punishing sheer stupidity from people who should know better?

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.. they were still welding without a permit. Which is illegal. So why couldn't they be cited for this?

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Weren't they? I know they previously faced citations and fines related to the incident, but I don't know the exact citations off the top of my head.

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if an arbitrary fine makes you feel that much better, it is an entirely reasonable request on your part.

or maybe instead you could shift your limited capacity for reasoning over to just wishing that the families of the firefighters are 'compensated' during a civil trial, which actually might just do some good for somebody, somewhere, maybe.

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I guess these things make a little more sense down in Rhode Island.

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They were cited with a $46,000 penalty that was later reduced some. Doing that work without a permit is a civil infraction, not a criminal one. The work having been done without a permit surely would be part of culpability in any civil trial if the families choose to bring them against the company.

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You "send" the message and it is in a pending status until it gets enough of a signal to actually send it out. Happens all the time.

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I've been asking since the day of the fatal fire if any of our distinguished media would ask to see the alleged burnt hose. Rather than being spoon fed with press releases, perhaps a reporter could ask.

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NECN is airing a report about this tonight at 9pm.

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