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SJC seems to support freed Lowell man

The state’s highest court Tuesday appeared willing to support a judge’s decision that freed a Lowell man from prison after 32 years, agreeing that new questions about evidence in a 1982 fatal fire cast doubt on the man’s conviction.

Victor Rosario was freed two years ago after Superior Court Judge Kathe M. Tuttman ordered that he receive a new trial. The Supreme Judicial Court will decide whether he remains free pending a new trial, or whether Tuttman erred in her decision, which would mean that Rosario would have to return to prison to complete his sentence.

Chief Justice Ralph Gants questioned what standard the court should follow in determining whether Tuttman erred and abused her discretion in ordering a new trial, the main question of law that the court was asked to consider.


“Don’t we focus now on the fundamental issue of whether there was a substantial risk of a miscarriage of justice?” the judge asked.

Lisa Kavanaugh, one of Rosario’s lawyers, agreed, saying, “Mr. Rosario’s case . . . constitutes a virtual perfect storm of injustice.”

Rosario, now 59, was sentenced to life in prison for the 1982 Lowell fire, which killed eight people, including five children. He confessed to the arson after a lengthy police interrogation, saying he and two accomplices threw Molotov cocktails at the triple-decker.

But Rosario claimed before the trial that he was under psychosis at the time of his confession and that he was coerced into confessing, but the argument was not successful and he was convicted. Rosario’s initial appeal was denied, and he served 32 years in prison.

In his latest appeal, however, new mental health experts testified that he was suffering from delirium tremens from alcohol withdrawal; he had been drinking heavily just before the fire. The diagnosis raised questions as to whether Rosario’s confession was voluntary.


Forensic investigators for the defense have also questioned the evidence in the case, including witness identifications and the determination that the fire was intentionally set. Advances in arson science have cast doubt on some of the investigatory methods used at the time — burn patterns formerly considered definitive evidence of arson are now believed to be a common occurrence in any house fire, whether intentionally set or not.

In her decision two years ago, Tuttman found that the new diagnosis of delirium tremens, combined with the advances in forensic science, raised doubt about Rosario’s confession. Rosario was freed from prison.

Middlesex District Attorney Marian T. Ryan appealed Tuttman’s decision to the Supreme Judicial Court, saying the new diagnosis of delirium tremens was not sufficient to warrant a new trial.

At Tuesday’s hearing, Assistant District Attorney Jessica Langsam argued that Rosario had already argued that his confession was involuntary because he was suffering a psychotic episode and therefore the diagnosis was not new evidence.

But Gants and other justices seemed to agree with Kavanaugh that the trial judge had the authority to consider the new diagnosis in light of the advances in witness identification and arson investigation technology.

“Don’t we need to consider it in totality?” Gants asked.

The court will issue a decision at a later date.

Milton J. Valencia can be reached at milton.valencia @globe.com. Follow him on Twitter @miltonvalencia.