April 05--The welders working at the rear of a Beacon Street building who officials say accidentally sparked the deadly Back Bay fire that killed Lt. Edward J. Walsh Jr. and firefighter Michael R. Kennedy are unlikely to face criminal charges, current and former prosecutors said.
"It's a horrible tragedy, and it doesn't mean they are somehow exonerated for their conduct, but that doesn't mean it rises to the level of criminal conduct," said Timothy M. Burke, a former Suffolk County homicide prosecutor.
Assistant District Attorney Ed Zabin said at yesterday's press conference that human error in fatal fires does not necessarily lead to criminal charges. He explained that negligent homicide charges can be brought only in certain fatal car accidents.
"In most cases, the human error does not rise to the level of criminal culpability," Zabin said, "and Massachusetts, unlike many other states, does not have a negligent homicide statute on the books."
Said Burke: "For there to be a charge of manslaughter, there would have to be conduct that was reckless in light of a known risk -- not simply something that was an error in judgment. It boils down to elements of foreseeability. If they had disobeyed a direct order to stop doing something by a firefighter and they went ahead and did it anyway, then there's foresee-ability of a known risk."
All evidence points to the blaze being sparked by accident, but the welders apparently failed to get a permit for the work, Police Commissioner William Evans and Fire Commissioner John Hasson said.
There was also no fire detail at the welding site, as is sometimes required for workers cutting metal.
"We're confident this was an unintentional death at this time," said Evans, who said any charges would be up to the Suffolk District Attorney's Office. Officials would not name the welders or the company involved. The building's owners, Oliver Realty Limited Partnership, released a statement yesterday that appeared to blame the welders for failing to get permits for their work.
"The company recently contracted with a third party to install safety railings at 296 Beacon Street. It was the company's understanding that these railings would be prefabricated offsite," the statement read. "We have cooperated fully with the investigators, providing them with all relevant information, and will continue to do so."
Hasson said the welders were using an Oxy-Acetylene torch to repair an iron railing in the rear of 296 Beacon St., next door to the fatal fire, when sparks from the job slipped in underneath clapboards or shingles of a wooden structure behind 298 Beacon St. The fire "festered" in the walls of the building before being whipped into an inferno by powerful winds off the Charles River.
Zabin said most household fires start with a mistake -- whether it's cooking or welding -- but not all mistakes are criminal.
Walsh, 43, a married father of three, and Kennedy, 33, a Marine Corps combat veteran, were killed March 26 battling the nine-alarm blaze. Their funerals were held this week.
Mayor Martin J. Walsh called the accidental fire "terrible and senseless."
"I am confident (fire investigators) will pursue the appropriate course of action in this case," Walsh said, "and they have my full support as they continue this investigation and evaluate their next steps."
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