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Justice accused of abuse of power in murder case

Lawyer in state probation case seeks new judge

Paul F. Ware, the lawyer who led the investigation into patron­age in the Probation Depart­ment, is accusing the state’s top administrative judge of abusing his powers in a homi­cide case in which Ware is the defense attorney, deliberately delaying rulings that might give Louis R. Costa a new trial.

Ware will ask a justice of the Supreme Judicial Court next month to order Chief Justice Robert A. Mulligan to remove himself from Costa’s case and allow another judge to determine whether Costa deserves a new trial in the 1986 slayings of two men in the North End. Other­wise, Ware warns in his request for a hearing before the state’s top court, Mulligan could keep Costa in a “legal deep freeze” indefinitely, ­despite new evidence that could exonerate him.

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Ware does not directly ­accuse Mulligan of bias, but notes that Mulligan himself has asked in court if his relationship with Ware could raise questions about his objectivity. As the courts’ chief administrator, Mulligan oversees the Probation Department, which Ware’s investigation found was plagued with illegal hiring practices that systematically awarded jobs to politically connected candidates.

Ware acknowledges that his request for Mulligan’s removal from the Costa case is “extra­ordinary,” but he says he has no choice.

“There is no other remedy to cure the untenable predicament Judge Mulligan has created for Costa,” Ware wrote.

Mulligan’s office declined to comment, but Suffolk District Attorney Daniel F. Conley is oppos­ing Ware’s motion, noting that Ware and other defense attor­neys have said in court filings in this case that they do not believe Mulligan is biased. When Ware and fellow defense counsel David J. Apfel originally asked Mulligan to step aside from the case, Conley noted, they said they did not question Mulligan’s integrity, but only the appearance of a conflict.

Conley also denies that ­Mulligan is taking an excessive amount of time to rule on Ware’s motion that he should recuse himself, a motion that was made in March. At the time, Mulligan preliminarily agreed to allow another judge to hear Costa’s appeal, Conley said, though the case has not yet been assigned to another judge.

The dispute traces back to an execution in a North End park on Feb. 19, 1986, when two alleged mob associates went down in a hail of gunfire. Frank Chiuchiolo was shot seven times, five times in the head, while Joseph Bottari was shot 16 times, six times in the head.

Costa, 16 at the time of the slayings, was convicted for his role in the killings, along with two others. The original verdict was overturned in 1992, and Costa was temporarily set free, but was convicted again, along with Frank DiBenedetto, in 1994. They have been in prison ever since.

The pair have been seeking a new trial since 2005, based on DNA analysis of the blood found on DiBenedetto’s sneakers. Prosecutors said the blood proved DiBenedetto was at the murder scene, but DNA shows the blood did not belong to ­either of the two victims. Costa and DiBenedetto are using this DNA evidence to seek a new ­trial.

Mulligan initially denied their request, but the SJC in 2011 overturned his decision and required the Superior Court to take another look at the blood evidence.

By the time Costa’s case came back before Mulligan in March 2012, Ware’s work as the independent counsel investigating the Probation Department had caused enormous upheaval. A state grand jury had already indicted the former commissioner, John J. O’Brien, and federal prosecutors were investigating allegations of rampant fraud at the agency.

Ware notes that Mulligan himself raised the possibility that his connection to Ware might raise questions about his objectivity; Ware had questioned Mulligan as part of his probation investigation. At the March hearing, Mulligan agreed that he would handle DiBenedetto’s appeal and allow another judge to handle Costa’s.

Five months later, Ware writes that Mulligan still has not allowed Costa’s case to be assigned to another judge.

“It is not Judge Mulligan’s bias that is the concern,” Ware wrote, “Rather, what is troubling . . . is the conduct of Judge Mulligan that has put” Costa’s appeal “into legal deep freeze, with no thaw in sight.”

The case is scheduled to go before Justice Francis X. Spina on Sept. 6.

Scott Allen can be reached at ­allen@globe.com.
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