Two men opened fire as Yawkey Way bar closed; now board has to decide if bar shares any blame

The Boston Licensing Board will meet next week to decide if Who's on First on Yawkey Way could have done anything to stop an attack that left a commuter-rail conductor dead and three other men with injuries as Thanksgiving began.

If the board determines the bar was negligent or somehow at least partially responsible for the shootings, it could take steps ranging from a simple warning to suspending or even revoking its liquor license.

At a brief hearing this morning attended by Jephthe Chery's family, police said surveillance video from the Red Sox showed one of the shooters leaving the bar around 1:45 a.m., then returning a few minutes later and standing across Yawkey Way from the bar. About 10 minutes later, police say, he and another man - who did not appear to have been in the bar - opened fire on the exiting crowds, fatally hitting Chery in the face.

One man, Dominique Carpenter-Grady of Dorchester, has been arrested on firearms charges related to the case. He has not been charged with murder, however.

District D-4 Sgt. John Wright said he had visited the bar shortly after 1 a.m. for a routine check - although he said he did not know the bar had essentially rented out its space to a promoter with a DJ that night. He said he found about 200 people - well below the bar's licensed capacity - and no apparent signs of trouble. People "seemed to be enjoying themselves," he said.

Still, because it was a holiday, he asked bar managers to begin last call a little earlier than usual - and ordered a wagon stationed at one end of the street at closing to block the street and ensure people left the area as soon as they exited. As 2 a.m. approached, Wright said, he and a couple of his officers and members of the BPD gang unit joined the crowds to put a damper on any trouble.

Around 2 a.m., officers on scene received a radio call about a possible fight around the corner, he said. Wright and the officers went to take a look but found nothing. "We were coming back onto Yawkey Way when the incident occurred," he told the board.

Jack Diamond, the bar's attorney, argued that there really was nothing the bar could have done: The guy who had been in the club left to get a gun and the night was completely uneventful up until closing - no altercations, no "weapons brandished." Even the shooter left peacefully, giving no indications he was about to instigate a tragedy.

And because the bar did nothing negligently or recklessly related to the shooting, it cannot be held responsible for the shootings, Diamond said. "Short of not opening that night, there was nothing they could have done," to prevent the shootings, he said.

He added that when the gunfire erupted, one of the bar's doorman actually braved the firefight to drag one of the victims inside the bar before locking the doors to protect the few patrons who had yet to exit.

Members of Chery's family did not testify at the hearing, but after it ended, they angrily told reporters the place shouldn't be allowed to re-open.

Diamond said he, his clients and Boston Police have agreed on some steps to try to make the area safer, including adding license scanners and cameras to the front of the bar, along with prominent signs about the cameras, on the theory that troublemakers would stay away if they know they might be captured on video.

After the hearing, BPD Superintendent Bernard O'Rourke said those are good first steps, but noted police have had ongoing problems at or near Who's on First.

Police have cited the bar several times over the past few years for violent incidents, most recently for a shooting outside its doors at closing that sent two women to the hospital. The licensing board determined the bar was not at fault for that shooting.