Today, in a landmark decision, the Massachusetts Supreme Judicial Court affirmed Victor Rosario’s right to a new trial. Middlesex District Attorney Marian Ryan will now have to decide whether or not to re-try Rosario.
Rosario was convicted in 1982 of setting a deadly house fire in Lowell, Massachusetts. Throughout his 32 years of incarceration, Rosario steadfastly maintained he was innocent of setting the fire, which killed eight people, five of them children. Rosario’s only connection to the fire was that of an eyewitness: he walked past the blaze on his way home, even attempting to break a window in the hopes of helping to free the people trapped inside. Two days later, he was the prime suspect.
After years of work by his lead attorneys Andrea Petersen and Lisa Kavanaugh, director of theCommittee for Public Counsel Services Innocence Program (CPCS) Judge Kathe Tuttman of the Superior Court ordered a new trial for Victor Rosario in July of 2014. In November of 2016 the Commonwealth appealed Judge Tuttman’s decison to the Supreme Judicial Court arguing that, despite the significant flaws in the evidence, his conviction should be reinstated.
Years after his conviction, the New England Center for Investigative Reporting began an investigation into the original findings, finally bringing to light the egregious flaws in the assumptions and conclusions that convicted Rosario of arson.
It was a cascade of these flaws that led to Rosario’s conviction. At the time of his multi-hour interrogation, the native Puerto Rican wasn’t fluent in English, and he was in the throes of alcohol withdrawal, suffering from serious delirium tremens as the interrogation progressed. Rosario eventually signed a confession written in a language he didn’t understand, stating that three Molotov cocktails had been thrown into the house.
No accelerant was found at the scene even though the prosecution’s theory was that the fire resulted from 3 Molotov’s cocktail. John Lentini, a prominent fire scientist who testified on Rosario’s behalf, told the Boston Globe that if Molotov cocktails were used, there would be physical evidence of them. “It’s hard to break a beer bottle; the neck almost never breaks because it’s small and compact, and the bottom is usually in one piece,’’ said Lentini. “If they were there, they would’ve found them.’’ Although the Commonwealth contended that the fire had multiple points of origin which would have implied arson, experts at the hearing found it more likely that the points relied upon by the Commonwealth indicated the flow of oxygen in the building.
It is impossible to now determine the actual cause of the blaze because the Commonwealth failed to preserve the evidence collected at the scene. Arson experts who reexamined the case noted that the evidence cited is consistent with an accidental fire, positing that an unattended space heater could have caused the fire.
At trial, Rosario’s court-appointed attorney offered a grossly inadequate defense. The attorney made little effort to refute the evidence provided, nor did he call any expert witnesses to challenge the claims of the investigation. Perhaps most damning was the fact that the lawyer was facing vehicular homicide charges of his own at the time of the trial, a situation he admitted was a “distraction.”
Rosario’s case is the latest of several arson convictions overturned in recent years amid serious doubts about the initial investigations. Evidence once considered a definitive sign of arson has more recently been shown to also occur in accidental fires; at the time of Rosario’s arrest investigators routinely relied on flawed “science”. It is unknown how many others have been convicted because of these errors.
“Victor’s case clearly demonstrates why the Commonwealth would benefit from a Forensic Science Commission,” said Denise McWilliams, Executive Director of the New England Innocence Project. “We should be working to ensure that only the most reliable science makes its way into courtrooms in Massachusetts, so that tragedies like Victor’s can be avoided.”