NYC dodges prosecution in deadly ground-zero fire

[December 23, 2008]  NEW YORK (AP) -- Prosecutors castigated city officials Monday but declined to charge them with any crimes in the deaths of two firefighters at a ground-zero skyscraper, despite repeated failures to detect hazards that turned the tower into a death trap.

The announcement follows a costly 16-month investigation that produced more than 3 million documents and forced top city officials, including the fire commissioner, to testify before a grand jury.

Three construction officials and a subcontractor that were dismantling the former Deutsche Bank tower when it burned in August 2007 were indicted on manslaughter and criminally negligent homicide charges. But prosecutors said it would have been impossible to charge the city.

"Everybody who could have screwed up, screwed up here," Manhattan District Attorney Robert Morgenthau said of the maze of government agencies and subcontractors that had worked at the building since it was heavily damaged in the Sept. 11 terrorist attacks.

The city agreed to major reforms, including the creation of a civilian inspection unit to monitor fire safety at construction sites, and general contractor Bovis Lend Lease agreed to pay the two firefighters' families $10 million in a "memorial fund."

But Morgenthau said, "we would have been tilting at windmills" if it tried to prosecute the city for safety failures.

Morgenthau said that while the city made major mistakes, governments are generally immune from criminal prosecutions under a legal doctrine known as sovereign immunity. That centuries-old doctrine held that nothing the monarchy did was illegal.

The safety pledges the city and Bovis agreed to will "make sure that firefighters are never again exposed to the risks they faced in that fire," he said.

Firefighters Robert Beddia and Joseph Graffagnino died of smoke inhalation after climbing up 14 floors into the toxic tower to fight a fire started by a construction worker's careless smoking.

Their efforts were hampered by a deliberately cut standpipe that supplies water to fire hoses and a maze of fire hazards that included deactivated sprinklers, stairwells blocked with plywood paneling meant to keep toxic debris in, and an air pressure system created more smoke.

The former 41-story tower has been a toxic eyesore ever since the World Trade Center south tower collapsed into it on Sept. 11. On the day of the fire, it had been dismantled to 26 stories after it was bought by the Lower Manhattan Development Corp., a state rebuilding agency.

The building's removal has been stalled previously by the discovery of hundreds of Sept. 11 victims' body parts left in the building, along with other accidents, including one that sent a pipe plummeting through the roof of a neighboring firehouse.

The indictment charges Jeffrey Melofchik, who was the site safety manager for Bovis; Mitchel Alvo, director of abatement for subcontractor John Galt Corp.; and Salvatore DePaola, a Galt foreman. The indictment said the men cut a 42-foot section of the standpipe off to speed up an asbestos-cleaning process in the basement, then lied about it, including falsifying reports that said it was inspected.

The three men face five to 15 years in prison. John Galt Corp., which was indicted separately, faces a $10,000 fine. The defendants pleaded not guilty at their arraignments in Manhattan's state Supreme Court.

Alvo, 56, of Huntington Station, and Melofchik, 47, of Westfield, N.J., were released on $250,000 bail; DePaola, 54, of New York, posted $175,000 bond. Defense lawyers said their clients were innocent.

Galt attorney Peter Driscoll said outside court that Galt isn't responsible for the firefighters' deaths. "A number of public and private agencies are responsible for what happened."

The city has admitted to many of the mistakes. The Fire Department -- which had a firehouse next door -- hadn't inspected the building in over a year, although it was supposed to every 15 days. Other city and state regulators had also been in the tower on a near-daily basis, but didn't report the hazards.

"Had the length of the standpipe been inspected by either the Fire Department or the Department of Buildings, the breach would have been detected and repaired," the city said in a statement Monday. "We deeply regret the failures of our agencies to inspect and detect the conditions that contributed to the deaths of Firefighters Beddia and Graffagnino."

Bovis Lend Lease said its $10 million fund would be split between each two firefighters' families and wouldn't stop them for suing for more damages. The fire and its aftermath "have been a painful period of soul searching for Bovis and the lessons learned have been hard," the company said.

Daniel Castleman, Morgenthau's chief deputy, said a second grand jury is investigating issues related to the fire. That probe is focused on the initial award of the cleanup and demolition contract to John Galt Corp. over the objection of city investigators, people familiar with it have said.

The LMDC declined comment. The former bank building's demolition was put on hold for about a year because of the blaze. After a floor-by-floor cleanup of toxic dust, the building is expected to be completely dismantled by next summer.

The probe has cost the city and state-controlled LMDC millions it has spent on criminal defense attorneys and other reforms.

Families of the firefighters said they intend to pursue civil suits against the contractors and the city, and had pressed for criminal charges against officials other than the contractors.

Joseph Graffagnino Sr., the father of one of the victims, said the results of the probe "wasted a lot of taxpayers' time and a lot of taxpayers' dollars."

"The city seems to go after the little guys. They could have done this from the second day after the fire," he said. "Why wait months just to go indict the John Galt company?"

[Associated Press; By SAMUEL MAULL and AMY WESTFELDT]

Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.