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Full Report Of State’s Attorney David Cohen

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Statement of the State’s Attorney for the Judicial District of Stamford-Norwalk Concerning the Fatal Fire on December 25, 2011, at 2267 Shippan Avenue, Stamford

INTRODUCTION

On December 25, 2011, a fire at 2267 Shippan Avenue, Stamford, resulted in the deaths of Lomer Johnson, Pauline Johnson, Lily Badger, Sarah Badger and Grace Badger. Two people present in the house at the time of the fire, Madonna Badger and Michael Borcina, were able to escape and survived.

As the chief law enforcement officer of this judicial district, it is my duty to determine whether any criminal charges should be brought as a result of this tragic event. It is a responsibility not undertaken lightly, as the horrific nature of the results of this fire require a thorough examination of this event in all its aspects.

In that regard, I have relied upon the investigations conducted by the Stamford Fire Department, and the Stamford Police Department, including all their reports, and interviews. I have reviewed photographic evidence, seized evidence and autopsy reports. Additionally, I have met personally with Matthew Badger, father of Lily, Sarah and Grace together with his attorney, and reviewed materials that they provided to me. I also met personally with counsel for Madonna Badger who also requested that I explore certain avenues of investigation, which I did. Further investigation was conducted at my request by Stamford PD.

This is not a decision made easily or lightly. In a tragedy of this magnitude, it is understandable that both the people affected by it personally and the public at large need to find that someone is responsible, that it is not just a senseless accident. However, my determination must be based solely on whether there is sufficient evidence to hold someone criminally responsible. In this task, I have been assisted by the staff of my office, specifically Supervisory Assistant State’s Attorney James Bernardi and Senior Assistant State’s Attorney Maureen Ornousky. Their review of the materials and wise counsel has been of immense help.

NIGHT OF THE FIRE

The first part of this examination focused on the events of December 24 and 25 at the house, specifically the immediate origin and cause of the fire. This was investigated by the Stamford Fire Marshall, based on a physical examination of the building, and reports by neighbors, responding fire fighters and the survivors, Mrs. Badger and Mr. Borcina. A “V” burn pattern was found at the extreme northwest corner of the house near the rear porch enclosure. The only area of the basement showing any sign of fire damage was the ceiling area in the northwest corner, directly below the rear entryway to the house from the so-called “mud room”. Additionally, examination of the electrical service in the basement ruled out any electrical malfunction as being the cause of the fire. It would appear, therefore, that the fire originated in the “mud room” located at the northwest corner of the first floor. Most likely it was caused by the disposal of fire place ash at that location. (Other theories have been proposed such as an electrical fault where the electric lines enter the house or defective electric or gas meters.) Regrettably, the structure was demolished before the State Fire Marshall’s Office or any other expert could make an independent examination and determination. Thus, other theories, however unlikely, cannot be definitively rebutted.

It is clear that a fire had been lit in the fireplace at the home sometime in the afternoon of December 24, and maintained throughout the day and early evening until approximately 8:00 p.m. when it was decided not to add any further wood. During the course of the rest of the night Mr. and Mrs. Johnson and the three Badger children retired, after which Mrs. Badger and Mr. Borcina went to the garage to wrap presents. They returned to the house at approximately 3:30 a.m. At that time, Mr. Borcina cleaned out the fireplace, shoveling the ash into a paper bag. He says that he then smoothed out the ashes in the bag with his hand. This was confirmed by Mrs. Badger, who stated that this allayed any concern that she might have had that there were live embers present. The bag was placed in a plastic storage box which was then placed just inside the exterior door in the mud room, the point of origin of the fire. Badger and Borcina retired separately at about 4:00 a.m. The fire was reported at 4:41 a.m.

PRESENCE OF SMOKE DETECTORS

A second part of this examination focused on the presence or absence of working smoke detectors. In this area there are very few undisputed facts. There is no question that the renovations to the house required the installation of “hard wired” smoke detectors, connected to the electrical system of the house with a battery backup system. These “hard wired” detectors were physically installed but had not yet been connected to the electrical system and were, therefore, not functioning. It is also clear that at the end of September, shortly after the Badgers moved into the house, 5 or 6 battery operated smoke detectors were purchased and installed. Finally, neither Mrs. Badger, nor Mr. Borcina, nor any neighbor has said that they heard any smoke detector horn sounding the morning of the fire. That is all that can be said for certain. In order to determine whether these smoke detectors were still present and operating on December 25, many of those working on the renovation of the house during the fall and winter of 2011 were interviewed. There is no consensus as to how many smoke alarms were present, where they were located, whether they had been removed or whether they had been disabled. Many of those interviewed had last worked at the home a month or more before the fire. It should be noted that Mrs. Badger had very specific recall of the location of all the installed smoke alarms and fire extinguishers, in no small part due to the insistence of her father, Mr. Johnson, who had been a safety officer for a corporation. New uninstalled smoke detectors were located in the garage on the property. However, they were of the “hard wired” variety, and were not the smoke detectors purchased and installed in September 2011.

Of course, it was impossible to physically inspect the remains of the house to determine if any smoke detectors were actually present in the debris, as the house was demolished and the debris removed before any such inspection could be performed.

Finally, although operating hard wired smoke detectors would be required in order for a final Certificate of Acceptance to be issued, at the time of the fire, no smoke detectors were required by the building code. It was also legal for the Badgers to be living at the house during the renovations unless the Building Inspector forbade it when the permit was issued.

LEGAL CONSIDERATIONS

Based on the investigation and materials described above, an examination was made to determine whether there was sufficient evidence to warrant criminal charges. We eliminated any arson or reckless burning charges as they require the intentional starting of a fire. See Connecticut General Statutes 53a- 113 and 53a-114. Manslaughter in the Second Degree Section 53a-56 of the Connecticut General Statutes requires that the State prove that someone recklessly caused the death of another. Acting “recklessly” is defined in part as being “aware of and consciously disregard a substantial and unjustifiable risk.” It is my opinion that there is insufficient evidence to establish that either Mrs. Badger or Mr. Borcina were aware of and consciously disregarded a risk that there was a possible live ember in the ash that could result in a catastrophic fire. It stretches belief to think that they would consciously disregard the danger and go to sleep, much less that they would disregard any danger to the Badger children or Mrs. Badger’s parents. Similarly, it would be difficult for a jury to believe that anyone would knowingly disable smoke detectors and then use the fireplace. Thus, this case is distinguishable from State v. Salz, where the person who recklessly wired the basement heater left shortly afterwards, never to return, abandoning the residents to their fate.

Similarly, there is insufficient proof to charge Criminally Negligent Homicide 53a-58 of the Connecticut General Statutes, as that statute differs in the mental state required, failing to perceive a substantial and unjustifiable risk, the risk having to be “of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” From the evidence recited before, we know that some precautions were taken. While in hindsight, they were obviously insufficient, when viewed from the perspective of that night, they do not rise to the level of criminal negligence. (I render no opinion on whether anyone was “negligent” in this matter, as that is a matter to be determined in the civil courts, if a party seeks that remedy.)

FURTHER RECOMMENDATIONS

As I have noted a number of times in this report, this investigation was hampered to some degree by actions of some City of Stamford officials. I would recommend that for the future the City adopt the following procedures for fatal fires:

  1. Before relinquishing the scene, the local fire marshal should notify the State Fire Marshal’s Office and give them an opportunity to assist with the investigation, so that a second opinion as to cause and origin could be obtained. This will allay any doubts as to cause and origin.
  2. Before any demolition is authorized and carried out, both the Police Department and the State’s Attorney’s Office be consulted. Even in an emergency situation, a small delay to explore alternatives will, in the long run, serve the public interest.

CONCLUSION

When such a horrific event occurs, it is only natural that those related to the victims and the public in general want to hold someone responsible for what is otherwise an inexplicable accident. I am aware that many have emotionally judged this circumstance differently. That is understandable. There is no way that I could begin to conceive of the depth of loss by the Badger family.

Sometimes the provable conduct involved is such that criminal charges are warranted, especially in situations where the safety of the public can be enhanced by the deterrent effect of prosecution. However, where so much is unknown or in dispute, where the facts are inconclusive and where the safety of the public will not be enhanced, I have decided to exercise the discretion given to me by our State constitution and by my oath of office and decline, at this time, to prosecute.

David I. Cohen
State’s Attorney
Judicial District of Stamford-Norwalk

June 8, 2012

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