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.