By Christine Dempsey, The Hartford Courant –
STAMFORD, Conn. — Madonna Badger and her boyfriend, Michael Borcina, finished wrapping presents about 3:30 a.m. on Christmas Day in a detached garage next to her Stamford home.
When they came in from the garage, Borcina decided to clean out the fireplace. A fire had been burning there since the previous afternoon, but no wood had been added since about 8 p.m., according to a statement released by the state’s attorney’s office on Friday.
Borcina, who had been doing work at the home, shoveled the ashes into a paper bag and smoothed the ashes with his hand. Badger told investigators that “this allayed any concern that she might have had that there were live embers present.”
The bag went into a plastic storage box, which was placed in the mudroom, according to the statement.
“Badger and Borcina retired separately at about 4 a.m.,” it states. “The fire was reported at 4:41 a.m.”
Officials believe embers from the bag likely sparked the fire that ravaged the Victorian home and killed Badger’s three daughters, Lily Badger, 9, and 7-year-old twins Sarah and Grace Badger, and her parents, Lomer and Pauline Johnson.
The probe by the police and fire departments took nearly six months to complete.
Neither Borcina nor Badger, a New York City ad executive, will be arrested, said David I. Cohen, state’s attorney for the Stamford-Norwalk judicial district.
Cohen concluded that there wasn’t enough evidence to charge anyone with criminally negligent homicide or manslaughter, according to the three-page statement. The statement sums up the findings of the lengthy investigation.
“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.”
Borcina’s attorney, Eugene Riccio, said: “We’re grateful for the state’s attorney’s determination in this very sad case. My client has been subject to a lot of undeserved criticism in this tragedy.”
Lawyers for Matthew Badger, the girls’ father, and for Madonna Badger could not be reached for comment.
According to Cohen’s statement, it was legal for the family to live in the house while Borcina and others did home improvements there because the building inspector didn’t say they couldn’t when the building permit was issued.
The house had hard-wired smoke detectors that had been installed but had not been connected to the home’s electrical system, he said.
The family had bought and installed five or six battery-operated smoke detectors at the end of September, after they moved into the house, Cohen said. But there is no clear agreement among the many people interviewed about how many were in the house, where they were, whether they had been removed or whether they had been disabled, he said.
Neither Madonna Badger, Borcina nor any neighbor reported hearing a smoke detector at the time of the fire, Cohen said.
Yet 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.” Before retiring several years ago, Lomer Johnson was the safety chief at Brown-Forman Corp., a liquor maker based in Louisville, Ky.; one of his responsibilities included planning fire drills.
Cohen said it was impossible to inspect the remains to determine if any smoke detectors were present because the house was demolished two days after the fire.
According to Cohen’s statement, a V-shaped burn pattern in the northwestern corner of the house — the mudroom — led investigators to determine that the fire “most likely” was caused by the disposal of ashes from the fireplace there, he said.
Cohen said there was no evidence that the fire was intentionally set.
When he weighed possible manslaughter charges, he had to consider whether Badger or Borcina had acted recklessly, or whether they were aware of and consciously disregarded “a substantial and unjustifiable risk.”
“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,” Cohen said.
There’s also insufficient proof to charge criminally negligent homicide, Cohen stated, because that would require someone “failing to perceive a substantial and unjustifiable risk.” He noted 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,” Cohen said.
Whether anyone is responsible financially for being negligent is a matter to be determined in civil court, he said. Matthew Badger filed a notice of intent to sue the city and is expected to sue Borcina.
It’s common for people to want to find fault in such situations, Cohen said. But he has a high standard to uphold if bringing criminal charges against someone, he said.
“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,” Cohen wrote. “However my determination must be based solely on whether there is sufficient evidence to hold someone criminally responsible.”
To some degree, Cohen said, the investigation was hampered by the house’s demolition. The fire department said the gutted home was taken down for safety reasons.
In the future, Cohen said, the police department and the state’s attorney’s office should be contacted before a burned structure is razed and the state fire marshal’s office should be given an opportunity to assist with the investigation.
The tragedy has spurred wider change, too: A bill requiring smoke detectors in single-family homes was passed by the legislature and is waiting for the governor’s signature.