BOSTON, Aug. 27, 2013—A single justice of the Supreme Judicial Court has denied the twice-convicted murderers of Joseph Bottari and Frank Chiuchiolo an appeal of another judge’s denial of a motion for a third trial after finding that the “newly discovered evidence” they presented would not have been a factor in the deliberations of juries that convicted them in the North End executions they committed more than 25 years ago, Suffolk County District Attorney Daniel F. Conley said.
In separate decisions entered Aug. 23 and received by prosecutors late yesterday, Justice Barbara Lenk denied the appeals of LOUIS COSTA and FRANK DiBENEDETTO after a Suffolk Superior Court judge denied their earlier motions for new trials in the 1986 slayings, for which both men were convicted of two counts of first-degree murder, first in 1988 and again in 1994.
“We have a solemn duty to follow the evidence wherever it leads, but the evidence in this case points only and inexorably to the defendants’ guilt,” Conley said. “These two men committed two callous executions in a city park. They were witnessed in those executions and they were identified not only by a person who knew one of the defendants by name but also by a stranger with no connection to the victims or defendants. They were convicted not once but twice. The facts are clear, the evidence is strong, and the interests of justice demand that these killers be held accountable for their crimes.”
Two juries found Costa and DiBenedetto guilty of acting with deliberate premeditation when they shot Bottari and Chiuchiolo to death on the night of Feb. 19, 1986, in what was then known as Slye Park in Boston’s North End. After the initial volley of shots by both defendants, DiBenedetto went over to Chiuchiolo’s body and fired an additional four to six shots into his head; he was additionally convicted on the theory of extreme atrocity or cruelty.
The first jury convicted the pair in 1988, but that conviction was reversed on appeal because jurors heard, among other evidence, recorded testimony from a witness who was not available to testify at trial. A second trial featuring that witness’ live testimony was held in 1994 before Suffolk Superior Court Judge Robert Mulligan, who went on to become chief justice for administration and management. The second jury likewise convicted both men, and Mulligan later denied the defendants’ motion for a new trial.
In that motion, the defendants claimed that testing in 2004 of “very small amounts of human DNA” found by a serologist on sneakers DiBenedetto was wearing at the time of his arrest several days after the murders did not match the genetic profiles of either murder victim. From that testing – and notwithstanding the abundant eyewitness testimony identifying them as taking part in the grisly fatal shootings or the possibility that the sneakers in question simply weren’t the ones DiBenedetto was wearing when he committed those shootings – the defendants claimed to have “new evidence” of their innocence.
Mulligan found otherwise and denied their motion for a new trial in 2009. The defendants appealed that denial to the Supreme Judicial Court, which in 2011 remanded the case back to him for further findings.
“Even assuming the reliability of the forensic serologist’s determination that neither victim’s DNA was found in the specific areas of the sneakers which she sampled, that limited factual predicate seemed plainly overstretched to support the defendant’s argument that DiBenedetto was not one of the shooters,” Mulligan wrote in his supplementary findings. “Furthermore, the DNA evidence at best had a collateral effect as to [DiBenedetto], given that he was separately identified by eyewitnesses as one of the shooters …. [T]he new DNA evidence had at most nominal exculpatory value that was overwhelmed by the strength of the Commonwealth’s case.”
Mulligan described at length and in detail the eyewitness testimony that positively implicated DiBenedetto and Costa, coming as it did from two separate and independent sources: one of them a person known to DiBenedetto and the other a neighborhood resident who watched the crimes unfold from his third-floor apartment overlooking what is now known as Copp’s Hill Park.
“I had the opportunity at trial to observe [that second eyewitness] firsthand,” Mulligan wrote. “He seemed fair and impartial, honest, and forthright. The substance of his testimony, and his overall credibility, did not diminish on cross-examination, despite considerable efforts by defense counsel … I credited the substance of [his] testimony at the time of trial and similarly credit it now upon review of the trial record.”
In sharply-worded denials of both men’s motions, Mulligan cited a 1986 SJC decision that lays out the requirements for a new trial based on newly-discovered evidence
“The defendant bears the burden of proving that the evidence alleged to be newly discovered ‘casts real doubt on the justice of the conviction,’” he wrote. “The defendant here, relying upon naught but gossamer inferences and speculation, has failed to meet that burden.”
Costa and DiBenedetto’s final appeal on the state level was to a single justice of the SJC in a request that Mulligan’s denial be reversed. The single justice closed the door on that possibility.
“I discern no error in [Mulligan’s] conclusion that the DNA evidence ‘had at most nominal exculpatory value,’ would likely have been ‘insignificant’ to the jury’s assessment of the defendant’s guilt, and would not have been a ‘real factor’ in the jury’s deliberations, given the testimony of two percipient witnesses,” Lenk wrote in identical paragraphs denying Costa’s and DiBenedetto’s motions.
Katherine Moran is the DA’s assigned victim-witness advocate. Assistant District Attorney Jack Zanini, chief of the DA’s Appellate Division, argued against the motion with former Assistant District Attorney Kris Foster. Costa was represented by attorneys David Apfel and, more recently, Paul Ware. DiBenedetto was represented by attorneys Max Stern and Dennis Shedd.
All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.