By JOHN CHRISTOFFERSEN,
Associated Press – Feb 23, 2012
NEW HAVEN, Conn. (AP) — A prosecutor is deciding whether to file criminal charges in the deaths of three girls and their grandparents on Christmas morning in an accidental blaze that authorities say was started after a contractor discarded a bag of fireplace ashes at the tony shoreline home.
The case has been followed closely in part because of the high profile of the girls’ mother, fashion advertising executive Madonna Badger, who escaped the fire along with her friend Michael Borcina, a contractor who had been renovating the $1.7 million Victorian home on Long Island Sound.
While investigators say the blaze was clearly accidental, it’s not uncommon for people, including family members, to be charged with crimes such as involuntary manslaughter for unintentionally starting deadly fires.
David Cohen, who has been Stamford’s top prosecutor for more than a decade, received a report from police investigators last week and has declined to comment on the case. He has worked on other high-profile cases, including a chimpanzee mauling in which he declined to pursue charges against the animal’s owner. Attorneys who have worked with him say he won’t be swayed by the emotion surrounding the case.
“His decision-making process is never a rush to judgment,” said Howard Ehring, a Stamford public defender. “I’ve heard him say many times we don’t want to prosecute an innocent person nor do we want to prosecute someone who is overcharged.”
Authorities have said they believe Borcina placed the ashes in or near an entryway, near the trash of the Stamford home.
The fire killed Badger’s 7-year-old twins, Grace and Sarah Badger, 9-year-old daughter, Lily, and Badger’s parents, Lomer and Pauline Johnson.
It is unusual for police to make arrests in connection with fires started by improperly discarded fireplace ashes, but there have been examples of relatives being held responsible for other fires.
In Columbus, Ohio, a 34-year-old woman was charged this month with involuntary manslaughter for a December apartment fire that killed her two young daughters. Police say the woman was drunk when she left food cooking on a stove that started the fire.
In Houston, 22-year-old Jessica Tata is charged with murder for a February 2011 fire at her home day care that killed four children and injured three others. Police say she left a stove burner on and left the children alone in the home while she went shopping. Tata has expressed remorse for the children’s deaths.
In December, a 54-year-old woman from Wasilla, Alaska, was indicted by a grand jury on a manslaughter charge for accidentally starting a fire that killed her 6-year-old grandson. Prosecutors say that the fire started in her bedroom, where she had been smoking, and that she had been drinking alcohol.
In Connecticut, police say they haven’t made a recommendation about possible criminal charges.
Legal experts say if Cohen decides to prosecute, potential charges could include reckless manslaughter or criminally negligent homicide. A manslaughter charge has a high standard in which authorities must show a person was aware of a substantial risk and disregarded it. For criminally negligent homicide, authorities must only prove that the person should have realized there was a danger, said William Dunlap, a Quinnipiac law professor.
Borcina could face heightened scrutiny because of his background as a contractor and his likely knowledge of the dangers of placing the embers near the house, said Stephan Seegar, a Stamford-based criminal defense attorney.
Borcina’s attorney, Gene Riccio, declined to comment.
Badger’s attorney, Stan Twardy, said, “I’m confident Mr. Cohen will exercise appropriate judgment in this matter.”
The investigation also looked at issues related to the renovation and whether smoke detectors were in the house.
There were plans for hard-wired smoke alarms, but they had not been hooked up, officials have said. It was unclear whether battery-operated akarns were being used.
The state building code requires smoke detectors in new home construction, according to Joseph V. Cassidy, acting state building inspector. It also requires that smoke detectors be added in older homes as part of most residential additions or interior alterations, he said.
Prosecutors met Wednesday with the girls’ father, Matthew Badger, a television commercial director who lives in New York, and Badger’s attorney.
Madonna Badger worked on Calvin Klein campaigns. Fashion designers Calvin Klein and Vera Wang, rocker Lou Reed and actor Philip Seymour Hoffman were among those who attended the girls’ funeral in New York.
A case may get a closer look when it’s followed by intense media attention, said Hugh Keefe, a prominent defense attorney in New Haven.
“When the media is on a case, it’s been my experience the state and federal government act a little more carefully,” Keefe said. “But I don’t think the ultimate decision is going to be any different.”
Defense attorneys who know Cohen say he carefully weighs evidence in cases.
Mark Sherman, a Stamford-based criminal defense attorney, said Cohen isn’t pressured by high-profile cases, noting that in 2009, Cohen decided not to prosecute the owner of a chimpanzee that mauled the owner’s friend.
“I think he did the right thing, even though the injuries were devastating,” Sherman said.
However, Cohen did charge a swimming pool company president with second-degree manslaughter in connection with the drowning of a 6-year-old boy because Cohen said the company failed to install a required safety device. David Lionetti last year pleaded guilty to criminally negligent homicide, a misdemeanor, and was spared prison time.