Commonwealth v. Rosario

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SJC-12115
COMMONWEALTH vs. VICTOR ROSARIO.
Middlesex. November 8, 2016. - May 11, 2017.
Present: Gants, C.J., Botsford, Hines, Gaziano, Lowy, & Budd,
JJ.1
Burning a Dwelling House. Homicide. Fire. Constitutional Law,
Admissions and confessions, Voluntariness of statement.
Evidence, Admissions and confessions, Voluntariness of
statement. Practice, Criminal, New trial, Admissions and
confessions, Voluntariness of statement.
Indictments found and returned in the Superior Court
Department on June 30, 1982.
A motion for a new trial, filed on October 19, 2012, was
heard by Kathe M. Tuttman, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Jessica Langsam, Assistant District Attorney (Thomas F.
O'Reilly, Assistant District Attorney, also present) for the
Commonwealth.
Lisa M. Kavanaugh, Committee for Public Counsel Services
(Andrea Petersen also present) for the defendant.
1
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
M. Chris Fabricant, Karen Newirth, James C. Dugan, Vincent
P. Iannece, Lara S. Kasten, & Kathryn J. Ranieri, of New York,
Stephanie Roberts Hartung, & Sharon L. Beckman, for New England
Innocence Project and others, amici curiae, submitted a brief.
BUDD, J. The defendant, Victor Rosario, was convicted in
1983 of one count of arson in a dwelling house and eight counts
of murder in the second degree; all the charges stem from a fire
that occurred in 1982. In 2012, the defendant filed the motion
for a new trial at issue here, arguing principally that newly
discovered evidence regarding fire science and the conditions
under which he confessed to the crime warranted a new trial.
Following an evidentiary hearing, a Superior Court judge who was
not the trial judge allowed the motion, ruling that the
defendant had presented newly discovered evidence, which cast
real doubt on the justice of his convictions. The Commonwealth
appealed. We allowed the defendant's application for direct
appellate review, and we affirm the order allowing the
defendant's motion for a new trial, but on different grounds.2
Background. 1. Evidence presented at trial. We summarize
relevant evidence introduced at trial. The fire started on the
first floor of a multi-unit apartment building in Lowell, and
was accompanied by the sound of breaking glass. The first
2
We acknowledge the amicus brief of the New England
Innocence Project, the Innocence Project, Inc., and the Boston
College Innocence Program.
3
telephone call to 911 was placed shortly after 1 A.M. on March
5, 1982. Police officers arrived, minutes later, to find the
building "fully engulfed in flames." It took firefighters
approximately one hour to get the fire under control. They
recovered eight bodies from the building, all victims of the
fire.
Because of the rapid escalation of the fire and the
associated deaths, the arson unit was called to the scene.
Investigators found that the heaviest burning and charring was
concentrated in the front, right, and left sides of the exterior
and first-floor interior of the building. Based on the burn
patterns in the front hallway, living room, and kitchen,
investigators believed that the fire had been concentrated along
the floor and baseboards. Although no wicks or flammable
liquids were detected in the apartment, the investigators
believed that the burn marks were consistent with flammable
liquids with points of origin being the front hall and kitchen.
Thus, they concluded that the fire was not accidental and could
have been started by multiple incendiary devices, such as
"Molotov cocktails."3
3
A "Molotov cocktail" is a breakable container with a wick
filled with a flammable liquid. It is used by lighting the wick
and throwing the container against a hard surface so that it
breaks, igniting the fluid inside the bottle, and starting a
fire.
4
There were several witnesses to the fire. One witness had
seen three men standing in front of the building minutes before
the fire; he said that he heard the sound of breaking glass and
then saw a man with his arm raised.4 A woman who lived across
the street stated that the defendant used drugs at her apartment
that night and that she saw him breaking windows after she
learned of the fire. Red Cross workers treated the defendant
for a cut on his hand at the scene and sent him to the hospital.
This evidence led investigators to the defendant, who was
interrogated by Lowell police officers at the fire department
headquarters during the night of March 6 and into March 7. The
defendant, whose first language was Spanish, was provided with a
civilian interpreter.5 Although the defendant appeared calm and
responsive when he arrived at approximately 11 P.M., soon after
4
When this witness was asked to make an identification at
the police station, he described one of the men as Puerto Rican
and approximately five feet, five or six inches tall with a thin
mustache, but he did not pick the defendant out of a
photographic array. After the defendant's photograph appeared
in the newspaper the witness told police that he recognized the
defendant as one of the three men who had been on the street
before the fire.
5
The interpreter, who was an active leader in the Lowell
Hispanic community at the time, had previously assisted the
Lowell police as an interpreter in at least one other
interrogation in relation to another suspicious fire that had
occurred in the same building. Some months after the
interrogation, before the defendant's trial in early 1983, the
interpreter became a deputy sheriff for Middlesex County at the
Billerica house of correction.
5
that he indicated that he was beginning to hear voices, and his
mental state deteriorated over the course of the night. A few
hours into the interrogation, after the defendant had made two
statements about the fire, one of the officers told the
defendant that they had "certain information" and wanted "to
know if he was part of it." The defendant broke down, sobbing
and praying on the floor. The breakdown lasted ten to twenty
minutes, but the defendant later appeared to recover.
The questioning resulted in three statements prepared by
the police interrogators and signed by the defendant. In the
first, signed at approximately 12:15 A.M., the defendant
admitted to being at the scene of the fire and stated he broke a
window to help rescue children from the building. Hours later,
he signed a second statement, admitting to being at the scene as
a "look out" for two other men, one of whom threw a Molotov
cocktail through a window in the building. Finally, toward the
end of the questioning, the defendant signed a final statement
indicating that he and the other two men threw Molotov cocktails
into the building, starting the fire. The statement also said
that before they had left for a bar that evening, he watched the
two other men make three Molotov cocktails in the basement of
6
his house;6 they planned to start the fire because one of the men
"wanted to get [one of the victims] over drugs." At
approximately 6:30 A.M., the defendant was arrested after
signing the final statement.
Following his booking, the defendant descended into total
incoherence. He repeatedly said that he was "the son of God,"
believed that the back of his head had been cut off, and did not
recognize his girl friend when she came to visit him. He
eventually was transferred to the house of correction in
Billerica for a psychiatric examination. State psychiatrists
there and at Bridgewater State Hospital (hospital) diagnosed the
defendant as psychotic. He was treated at the hospital and
eventually recovered. His symptoms never recurred, and the
defendant was deemed competent to stand trial.
The defense theory of the case at trial was that the
defendant was at the scene of the fire because he and his
friends were walking home from a bar and stopped by a house
close to the fire to purchase drugs. The defendant, who
testified, told the jury that he hurt his hand when he broke a
window in his attempt to rescue children from the flames. Both
6
When the police searched the common basement of the
defendant's apartment building, they found a gasoline can and a
paint can with a beer bottle and other trash inside. At an
apartment belonging to one of the other men, the police found a
can of "Red Devil" paint remover, which had been purchased days
before the fire.
7
in a motion to suppress and at trial, the defense relied on the
diagnosis of psychosis to argue that the defendant's statements
during the interrogation were involuntary. The defendant
testified that he did not remember making any of the statements
attributed to him and that he had never heard of a Molotov
cocktail before the interrogation. As the voluntariness of his
confession was at issue throughout the trial, the trial judge
instructed the jury on the humane practice rule.7 During their
deliberations, the jury requested, but were not provided,
transcripts of the doctors' testimony, and the doctors' reports
were not admitted into evidence. The jury convicted the
defendant of arson and eight counts of murder in the second
degree.
2. The motion for new trial. In 2012, the defendant filed
his motion for a new trial, citing newly discovered evidence.
The motion judge conducted an evidentiary hearing over the
7
The humane practice rule requires that the Commonwealth
prove beyond a reasonable doubt that the statement was voluntary
before the jury may consider it. See Commonwealth v. Tavares,
385 Mass. 140, 152, cert. denied, 457 U.S. 1137 (1982). If the
voluntariness of the statement is contested, the judge must also
find that it was proved beyond a reasonable doubt that the
statement was voluntary. Id. The judge instructed the jury to
examine the defendant's statements made during the interrogation
in order to determine whether they were "the product of
coercion, threats, physical or psychological intimidation, which
had the result of overriding or overbearing the free will of the
defendant."
8
course of six days in 2014. She credited the following evidence
introduced at the hearing.
a. The interrogation. According to the affidavit of the
interpreter who had assisted the police at the time the
defendant was interrogated in 1982,8 despite the written
statements, the defendant had actually neither stated that he
acted as a lookout, nor that he threw a Molotov cocktail into
the building. Instead, the officers themselves suggested these
details during the interrogation and then included them in the
written statements that the defendant signed. Although the
first and second statements were interpreted from English into
Spanish before the defendant signed them, the third statement,
the only one in which he admitted to throwing a Molotov cocktail
into the house, was not. The interpreter also indicated that
the defendant had been incoherent at the time he signed the
second and third statements, and that even before his breakdown,
the defendant had referred constantly to being possessed by the
devil and to being the son of God. He also told the interpreter
8
By 2014, the interpreter had moved to Puerto Rico.
Although he initially agreed to travel to Massachusetts to
testify at the evidentiary hearing, he later refused to appear
voluntarily. Insofar as relevant here, as the interpreter could
not be compelled to appear, the motion judge allowed defense
counsel to introduce into evidence a redacted version of the
interpreter's affidavit, signed in 2009, for the purposes of
this most recent new trial motion.
9
that he had injected heroin before coming to the station for the
interrogation.
The defendant's two psychiatric experts at the new trial
motion hearing testified that rather than psychosis, the
defendant suffered from delirium tremens (DTs) at the time of
his confession. DTs, also known as alcohol withdrawal delirium,
begins when a person who drinks a significant amount of alcohol
abruptly reduces his alcohol intake. It is a neurologic,
neurocognitive disorder that disrupts neurotransmitters in the
brain. The condition is marked by derangement of mental
processes resulting in disorientation, confusion, behavioral
disturbances and hallucinations. It leaves one highly
suggestible, unable to process information reliably, and unable
to make rational decisions.
The symptoms of the condition worsen over the course of
five days. Within twelve hours, the person may be confused or
agitated but knows where he is and who he is. By the second day
of withdrawal, the person may experience auditory
hallucinations, as well as a sense of persecution. The most
characteristic symptoms of DTs develop on the third day, when
the person may experience visual, tactile, olfactory, and
auditory hallucinations. From the third day onward, the person
becomes extremely disoriented and agitated, and other functions
of the nervous system start to break down. The hallucinations
10
peak at day three or day four. DTs is an acute syndrome and
subsides as the person recovers from alcohol withdrawal,
typically beginning at around days five, six, and seven.
The defense introduced evidence that the defendant was
particularly prone to DTs due to a prior serious head injury and
a history of heavy drug and alcohol abuse: he drank
approximately a case of beer a day and hard liquor, often
beginning at about 9:00 A.M. He had been drinking more heavily
than usual in the days prior to the fire, but following the
fire, he dramatically reduced his intake. His girl friend's son
and others saw him behaving in extreme, unusual ways they had
never seen before. As a result, the defense experts opined that
as the defendant arrived at the police station for the
interview, forty-six hours after the fire, he was finishing day
two of his withdrawal and entering day three, and he began to
experience full-blown symptoms of DTs. He was very suggestible
at this time and could not make rational decisions or process
information reliably.
The defense experts also testified to their opinions
concerning why the previous psychiatrists had diagnosed the
defendant incorrectly. They hypothesized that because the
previous psychiatrists did not examine him when his symptoms
were most aligned with delirium, by the time the defendant was
diagnosed, eight or more days after the fire, his alcohol
11
withdrawal had progressed such that the residual symptoms of DTs
might present as a psychotic disorder. One of the experts
further hypothesized that the language barrier made it difficult
to get a complete history, including the defendant’s history of
alcohol abuse.
b. The fire science. The defendant additionally presented
two fire science experts who testified that more recent fire
science research, some of which was not completed until 2005,
had led to new protocols for evaluating the source of a fire.
Applying these protocols to the fire in question, the experts
both determined that, rather than being arson started with
Molotov cocktails at multiple locations, the forensic evidence
was equally susceptible to an interpretation that the fire was
accidental, involved no flammable liquids, and had a single
point of origin. The experts explained that "flashover" likely
took place: flashover is a phenomenon that occurs when the fire
goes from being controlled by fuel to being controlled by the
oxygen available in the room depending upon the ventilation.
Once flashover occurs, there is "full room involvement," where
the intensity of the fire -- and, as a result, the burn patterns
-- may vary depending upon the areas of ventilation. Once this
happens, the point of a fire's origin cannot be accurately
identified because the fire causes the most damage in areas
where there is more oxygen available, generally near doors and
12
windows. They further explained that because irregular curved
or pool-shaped patterns are common in postflashover conditions
and may result from the effects of hot gases, smoldering debris
and melted plastics, the presence of flammable liquids should be
confirmed by laboratory analysis and should not be based on
appearance alone.
The original fire investigators believed that the fire was
arson because there were two apparently separate areas of
heavier damage that did not appear to have communicated with one
another. However, the defendant's experts explained that the
fire likely traveled from the living room into the hallway and
kitchen because there was more oxygen in those areas. One of
the defense experts also opined that one of the original
investigators' conclusions, i.e., that a burn pattern observed
near the rear kitchen door was consistent with flammable liquid
flowing under the door, was a misconception about fire science
because experts now know that hot gases in one room can cause
burning on the other side of a closed door. Further, the
blistering effect that was thought to be consistent with the use
of flammable liquid is now known to be found in many types of
fires, whether or not flammable liquids were present.
Ultimately, the defense experts opined that the fire was
consistent with an accidental fire originating in the living
13
room or elsewhere, and spreading from there, but that the cause
was undetermined.
3. The motion judge's rulings of law. The motion judge
granted the defendant's motion for a new trial based on the
psychiatric experts' diagnosis of DTs. She concluded that the
determination that the defendant had been suffering from DTs was
newly discovered, reasoning that it could not have been
uncovered by defense counsel's due diligence by the time of
trial, and that it cast real doubt on the justice of the
conviction, specifically the voluntariness of the defendant's
confession, especially when combined with the coercive
interrogation techniques used by the police.9 See, e.g.,
Commonwealth v. Cowels, 470 Mass. 607, 616-617 (2015).
She also determined that the fire science evidence was
newly discovered because it did not exist at the time of trial
and differed significantly from the principles relied upon at
that time. She concluded, however, that, by itself, the new
science evidence did not cast real doubt on the justice of the
9
The motion judge also found that information about the
police officers' interrogation practices was newly discovered,
but that it alone would not warrant a new trial.
14
defendant's conviction. See Commonwealth v. Grace, 397 Mass.
303, 306 (1986).10
The motion judge alternatively ruled that the DTs diagnosis
entitled the defendant to a new trial under a substantial risk
of a miscarriage of justice analysis. See Mass. R. Crim. P. 30
(b), as appearing in 435 Mass. 1501 (2001). See also
Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). She
concluded that the fact that the defendant was experiencing DTs
during the interrogation, combined with testimony about the
interrogation techniques that were used, could lead a reasonable
fact finder to conclude that the defendant's statements were
involuntary. In her view, this would have been a real factor in
the jury's deliberations, especially in combination with the
newly discovered fire science evidence, and provided a separate
ground for a new trial.
10
The judge explained that if a jury found that the
defendant's statement that he threw a Molotov cocktail through
the window was voluntary, then the Commonwealth's theory
regarding arson would have been corroborated, so the new fire
science alone would not suffice. Although the defendant's
statement may have corroborated the arson theory, we note that,
on the other hand, the new fire science evidence may have caused
the jury to question whether the fire was intentionally set and,
therefore, whether the statement itself was corroborated. See
Commonwealth v. DiGiambattista, 442 Mass. 423, 430 (2004) (we
require "corroboration that the underlying crime was in fact
committed"). At any rate, the judge also recognized in a
footnote that if the diagnosis of DTs or the questionable
interrogation tactics undermined the voluntariness of the
statements, the new fire science would cast further doubt on the
justice of the conviction.
15
Although we do not agree that the DTs diagnosis was newly
discovered,11 we nevertheless affirm based upon the totality of
the judge's findings and the "confluence of factors" analysis
developed subsequent to her decision in this case. Commonwealth
v. Brescia, 471 Mass. 381, 396 (2015). See Commonwealth v.
Ellis, 475 Mass. 459, 481 (2016); Commonwealth v. Epps, 474
Mass. 743, 767 (2016).
Discussion. 1. Standard of Review. A judge "may grant a
new trial at any time if it appears that justice may not have
been done." Mass. R. Crim. P. 30 (b). "Our decisions have
crafted a latticework of more specific standards designed to
guide judges' determinations . . . as to whether a new trial
should be ordered." Brescia, 471 Mass. at 388. Examples
include, "a serious doubt whether the result of the trial might
have been different had the error not been made," (citation
omitted), Randolph, 438 Mass. at 297 (unpreserved claim of
nonconstitutional error); evidence "would probably have been a
real factor in the jury's deliberations," Grace, 397 Mass. at
11
Because the defendant failed to demonstrate that the DTs
diagnosis was not an available diagnosis at the time of trial,
it cannot be considered newly discovered. See Commonwealth v.
Shuman, 445 Mass. 268, 272 (2005) ("evidence does not meet the
test for 'newly discovered' evidence [if] it was available prior
to trial"). To the contrary, defense experts at the motion for
new trial hearing testified that DTs was widely recognized at
the time, and that the defendant was experiencing a "textbook"
demonstration of DTs symptoms at the time of his confession.
16
305 (newly discovered evidence); the behavior of counsel "[fell]
measurably below that . . . from an ordinary, fallible lawyer
[and such failing] likely deprived the defendant of an otherwise
available, substantial ground of defen[s]e,'" Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974) (ineffective assistance of
counsel). See generally Brescia, supra at 388-391.
As mentioned in Brescia, 471 Mass. at 388, the principle of
finality of convictions remains a valuable and important concept
in our jurisprudence, see Commonwealth v. LeFave, 430 Mass. 169,
175 (1999), as does the principle that a defendant "is entitled
to a fair trial but not a perfect one" (citations omitted).
Brescia, supra at 391. Nevertheless, in rare cases, in order to
fulfill the obligation incorporated in Mass. R. Crim. P. 30 (b)
to determine whether "justice may not have been done," a trial
judge may need to look beyond the specific, individual reasons
for granting a new trial to consider how a number of factors act
in concert to cause a substantial risk of a miscarriage of
justice and therefore warrant the granting of a new trial. See
Brescia, 471 Mass. at 389-390, 391 n.11. See also Epps, 474
Mass. at 767-768. Where the trial judge grants the motion, the
appellate court must determine whether the judge abused his or
her discretion. See Brescia, supra at 397. See also Ellis, 475
Mass. at 476.
17
In the Brescia case, the motion judge concluded that
justice may not have been done where the defendant's undetected
stroke affected his ability to testify in a coherent manner, and
could well have damaged his credibility with the jury. 471 Mass.
at 387. We affirmed the order granting a new trial even though
none of the usual reasons for doing so (e.g., constitutional
error, newly discovered evidence, or ineffective assistance of
counsel) were present. Id. at 387, 396-397. Similarly in the
Ellis case, we concluded that the motion judge did not abuse her
discretion in granting a new trial where a combination of newly
discovered evidence together with other evidence presented at
trial warranted it. 475 Mass. at 481. There, the motion judge
had focused on a conflict of interest that was newly discovered;
the victim in that case, a police officer, had participated in a
corruption scheme with the detectives who investigated his
murder. Id. at 465-466. The defendant also presented evidence
showing that the investigators failed to pursue other leads.
Id. at 469-472. We affirmed the motion judge's conclusion that
these two factors could have acted in concert to influence the
jury's deliberations, reasoning that the defendant could have
argued that the corrupt detectives' priority was concealing
their own wrongdoing, rather than identifying the killer. Id.
at 478, 481.
18
This case, too, presents a situation in which a confluence
of factors combined to create a substantial risk of a
miscarriage of justice.
2. Confluence of factors. The motion judge's analysis,
which focuses on whether "justice may not have been done," Mass.
R. Crim. P. 30 (b), aligns with our decisions in the Brescia,
Epps, and Ellis cases. She considered the unique confluence of
events in light of the totality of the circumstances, that is,
the irregularities in the defendant's interrogation leading to
his confession (including the defendant's neurologic condition)
combined with the new fire science in determining that the
defendant is entitled to a new trial.
a. The interrogation. The voluntariness of the
defendant's statements was thoroughly argued at trial and
considered by the jury. However, there are substantial
differences between psychosis and DTs that may have made a real
difference in the jury's verdict. Although psychosis is a
mental disorder that does not necessarily cause cognitive
impairment, DTs is a neurologic disorder with an underlying
physical cause that disrupts the ability to process information
and leaves one disoriented, confused, and highly suggestible.
Because voluntariness was at issue, the jury were required to
determine whether the defendant's statements were voluntary
beyond a reasonable doubt before they were permitted to use them
19
in reaching their verdicts.12 See Commonwealth v. Tavares, 385
Mass. 140, 152, cert. denied, 457 U.S. 1137 (1982). The DTs
diagnosis, with its underlying physical rather than
psychological origin, could have been highly relevant to the
jury's consideration of the voluntariness and reliability of the
defendant's confession -- the most compelling part of the
Commonwealth's case.13 See id. ("a defendant's statement is
usually the key item in the proof of guilt, and certainly one of
overpowering weight with the jury" [quotations and citation
omitted]). If the jury had concluded that the statements were
12
Indeed, it seems evident that the jury were concerned
about the defendant's mental status insofar as they requested
transcripts of the psychiatrists' testimony, which were not
provided.
13
This evidence does not fall neatly into one of the
categories usually relied upon to argue for a new trial.
Although the DTs diagnosis was "discoverable," and therefore not
"newly discovered" evidence, we cannot say that defense counsel
was ineffective for failing to discover it. He relied upon the
expertise of others -- three psychiatrists who examined the
defendant while he was in custody opined that the defendant was
psychotic at the times they examined him, one opined only that
he was not suffering from a mental illness at the time of
questioning, and an expert witness retained by the defense
opined that the defendant was psychotic during the interrogation
-- in a field in which the attorney was not himself trained. It
would be a high hurdle indeed to expect counsel to continue to
search for an alternative diagnosis where he reasonably could
not be expected to know that one existed. See Commonwealth v.
Buck, 64 Mass. App. Ct. 760, 764 (2005). This is especially so
where several different psychiatrists concluded that the
defendant had suffered from psychosis either during the
interrogation or after booking, even if the judge was later
persuaded that this diagnosis was incorrect.
20
not made voluntarily, then the Commonwealth's case would have
been significantly weakened.
The defendant's condition was only one part of the problem
with the interrogation. The motion judge made significant
findings regarding the circumstances surrounding the defendant's
confession. She credited the interpreter's sworn affidavit in
which he stated that the police officers added their own
accusations about the origin of the fire, e.g., that the
defendant threw a "Molotov cocktail" into the building, into the
statements they prepared for the defendant to sign. This
significant flaw was compounded by the fact the third, and most
incriminating, statement was not interpreted into Spanish before
the defendant signed it.
In addition, three of the tactics used during his
interrogation have the potential to elicit false confessions.
See Commonwealth v. Tremblay, 460 Mass. 199, 208 (2011).
Although not newly discovered evidence, we consider these flaws
in evaluating whether justice requires a new trial under the
totality of the circumstances. See Ellis, 475 Mass. at 480-481.
First, although the defendant said that he had stopped at the
location because he observed the fire and wanted to help people
escape the building, the officers falsely told the defendant
that a witness had placed him at the scene before the fire
began. See note 4 supra. Second, the officers motivated the
21
defendant to confess; they said that if his friends had caused
the fire, they might blame him, and he would be left "holding
the bag." Third, the officers engaged in "formatting," meaning
that they told the defendant some corroborating details, which
the defendant then adopted as part of his confession: that he
acted as a lookout for his friends; that there were three points
of origin for the fire; and that the fire was started with
Molotov cocktails. These details were later included in the
written statements. Such tactics are of particular concern
where, as here, a suspect is already suggestible and was never
given a translation of the last, most critical statement. We
note that the defendant claimed that he had never heard of a
Molotov cocktail before the interrogation. Until the last
statement, he denied causing the fire and repeatedly stated that
he had sought to save children from the burning building. The
fact that the defendant was suffering from DTs increased the
possibility of a false confession.
b. The fire science. At trial the defense did not
introduce any testimony to challenge the Commonwealth's arson
experts. Although the new fire science evidence presented by
the defendant at the hearing on the motion for a new trial
certainly does not prove that the fire was accidental, it does
provide an alternative theory as to cause (accidental, unknown
origin) and explains that the burn patterns alone could not
22
prove that flammable liquids were involved. Thus, additional
sources of evidence were necessary for the Commonwealth to meet
its burden of proving arson. Had this new fire science evidence
been available at the time of trial it might have changed the
defense strategy. This new evidence could have provided a basis
for the jury to question further the defendant's confession, as
well as the Commonwealth's evidence regarding how the fire
developed.
Conclusion. The loss of eight lives in the fire in 1982
was unquestionably tragic, and without a doubt must have weighed
and must continue to weigh heavily on the victims' families as
well as the community. Nevertheless, under our Constitution and
system of laws, every criminal defendant is entitled to a fair
trial where, to the extent possible, justice is done.
The DTs diagnosis, the information from the interpreter,
and the data on coercive interrogation tactics all call into
question whether the defendant's statements were made
voluntarily. The new fire science provides an alternate theory
regarding the start and spread of the fire. These factors taken
together could have influenced the jury's verdict. Although the
evidence presented in support of the defendant's motion for a
new trial does not necessarily mean that he is innocent, the
judge concluded, after what was clearly a painstaking review of
the trial record, that justice was not done. See Ellis, 475
23
Mass. at 460. We conclude that in reaching this determination,
the judge did not abuse her discretion. Commonwealth v. Wright,
469 Mass. 447, 461 (2014). As a result, we affirm her order
granting a new trial.
So ordered.