JUDGE DENIES PARENTS PROBE
ACCESS
Author(s): Scott W. Helman,
Globe Staff Correspondent Date: August 16, 2002 Page: B2 Section: Metro/Region
WORCESTER - The state fire marshal's probe into
last month's fatal apartment building explosion in Hopkinton will resume after a
Worcester Superior Court judge yesterday refused to allow a couple whose
daughters died in the blast to participate in the investigation.
Heath and Tara Carey were seeking to have their
own specialists present as the fire marshal's office began forensic testing on
evidence gathered from the scene of a early morning explosion July 24 that
destroyed their downtown Hopkinton apartment building, killing 4-year-old Iris
and 5-year-old Violet. Judge James P. Donohue yesterday quickly removed a
temporary restraining order that has held the state investigation at bay since
late last week. Citing a state statute that explicitly orders the state fire
marshal's office to investigate suspicious fires and explosions, Donohue ruled
that allowing the Careys access to the proceedings would taint the case.
"The investigation into whether criminal
conduct was involved in the explosion cannot properly be conducted according to
law if any interested party is allowed to intervene in the process,"
Donohue wrote in his decision.
John Wozniak, an attorney representing the
Careys, said he planned to appeal the ruling.
Wozniak argued yesterday that the Careys, who
are temporarily living in Milford, don't want to obstruct the investigation,
only to have access to it - especially during certain tests of evidence that can
only be performed once.
"We're not asking that we be allowed to
see every last detail of the state fire marshal's investigation," he said.
"We're not asking to interfere."
Interference is what the state argued would
happen if the Careys were allowed to participate in the probe, which also
involves the state Department of Telecommunications and Energy.
"The state fire marshal needs to preserve
the integrity of the criminal proceedings," said Susan Paulson, an
assistant attorney general representing the state. "The state fire marshal
and DTE are also trying to find the right answers here. They have no ulterior
motive."
Paulson said the temporary restraining order
has already slowed the process.
"The investigation is proceeding, and it
should proceed," Donohue said after announcing his decision yesterday.
Though investigators believe a natural-gas leak
sparked the explosion, there are pipes, meters, and other materials from the
apartment site awaiting testing in a trailer at the fire marshal's Stow
headquarters.
Wozniak said he was promised on two occasions
by state fire investigators that the Careys would be allowed access to the
investigation, which the family believes will help with potential civil action
down the road.
An attorney representing NStar, the gas
provider for the apartment building, said the company also wanted access to the
investigation.
State Fire Marshal Stephen Coan welcomed the
judge's decision yesterday, saying the investigation of the blast can now
continue unfettered. While he acknowledged the Careys' obvious stake in the
outcome, he insisted his office has the family's best interests at heart.
"This office has a longstanding track
record on conducting major investigations," Coan said. "We do want to
be accommodating to the victims and the families of the victims. It never has
been our intention not to share information, but to allow the investigation to
proceed in an orderly fashion."
Coan said that once the criminal phase of the
investigation is complete, his office will share its information with the Careys
and other parties in the case.
Donohue refused to stay the decision pending
the Careys' appeal, which means forensic testing could have begun yesterday.
Coan declined to comment specifically on
whether testing resumed following the judge's ruling, saying only that "we
are continuing and working diligently on the investigation as we speak."
Neither Coan nor and Steven Rourke, general
counsel for the fire marshal's office, could remember any past cases in which
victims of a fire or explosion had sought this kind of access to a criminal
investigation.
But it is common in other kinds of cases, legal
specialists said. Criminal defendants frequently have their own specialists
present during autopsies and DNA tests, said Randy Chapman, former head of the
criminal justice section of the Massachusetts Bar Association.
And Thomas Smith, a partner with the law firm
Sugarman and Sugarman, said restraining orders against forensic testing are
often sought in civil cases where, for example, questions arise about whether a
manufacturer's product has functioned properly.
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