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Victor Rosario

Other Arson Exonerations with False or Misleading Forensic Evidence
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Shortly after 1 a.m. on Friday, March 5, 1982, a fire was reported in a building at 32-34-36 Decatur Street in Lowell, Massachusetts. By the time firefighters could enter the building, eight people—three adults and five children—had perished from smoke inhalation.

Efrain Cortes, 21, his wife, Nancy Velasquez, and their sons, two-year-old Efrain and six-month-old Jose, were found on the rear stairs of the three-story building. Adelaida Ferrer, 35, and her sons, five-year-old Javier, four-year-old Augustine, and two-year-old Joseph, were found in a back bedroom on the first floor.

Firefighters concluded that arson caused the blaze. The fire appeared to have been ignited in more than one location. Moreover, they observed patterns on the floors indicated a flammable liquid had been present, as well as other indicators of arson, such as heavy charring and low burning.

On March 6, police learned that 24-year-old Victor Rosario had been treated by the Red Cross for cuts on his hand and then was taken by ambulance to a hospital. Detectives interviewed Rosario at the apartment where he lived with Carmen Garcia and her three children. With 14-year-old Luz Garcia acting as translator, Rosario said he and a friend, Felix Garcia, were on their way home after a night of drinking when they saw black smoke coming from the building.

Rosario said he couldn’t get in through the door because of heavy smoke, so he broke several windows with his hand, cutting himself. He said he could hear children screaming, but was unable to get them out. Rosario and Luz Garcia accompanied the police to Felix Garcia’s apartment where Felix gave a similar account.

Later that evening, the detectives learned that Edward Evans, who lived near the building, reported that he was walking home shortly after 1 a.m. when he saw a man standing with his back to Evans. Evans heard the crash of a window breaking and saw the man’s face. Evans said the man’s left arm was raised and his hand was empty, but he did not see him throw anything. Evans failed twice to identify Rosario from a photo array, but later claimed to recognize him in a photo on the front page of the local paper reporting that Mr. Rosario had confessed to setting the fire.

The detectives went back to Rosario’s apartment and took him to the police station. During a night of interrogation, detectives said Rosario gave three different statements. In the final version, he implicated himself, Felix Garcia, and Garcia’s brother, Edgardo, in setting the fire.

Rosario gave his first statement at about 12:15 a.m. Rosario said the three of them were walking home from a bar when they saw and smelled smoke. He said he cut his hand trying to get inside to rescue residents. After he made that statement, Rosario spoke to the translator alone.

In the second statement, which he gave sometime between 1:55 and 3:30 a.m., Rosario said he left the bar with Felix and Edgardo and went to another bar where Felix got a paper bag. They walked to the Decatur Street building, and Felix asked Rosario and Edgardo to act as lookouts while he burned the building. Rosario said Felix broke a first floor window, took a Molotov cocktail out of the bag, and tossed it inside the building. In the ensuing fire, Rosario said he broke windows to try to save people.

Rosario was shown a photograph of the Decatur Street building and pointed out the window through which Felix threw the Molotov cocktail. He also identified photographs of Edgardo and Felix.

After signing this second statement, a detective told Rosario that the police had “certain information” and wanted “to know if he was part of it.” Rosario then broke down, went down to his knees, put his hands together and began praying. He said, “God, oh, God,” and began sobbing. “Oh, God, those kids,” he said. This lasted about 10 to 20 minutes. He then had a drink of water, smoked a cigarette and seemed, police later said, to have calmed down.

Police said that Rosario then told them he wanted to amend his statement. He said that he was with Felix and Edgardo at their apartment when they made three Molotov cocktails. They went to the Decatur Street building and each tossed a Molotov cocktail through different windows. Detectives said Rosario told them the building was targeted because Felix was angry with Cortes, who died in the fire, because of a dispute over drugs.

Rosario was charged with arson and eight counts of murder. Felix and Edgardo also were arrested and charged, but ultimately the Middlesex County District Attorney dropped those charges because Rosario would not testify against them. Felix and Edgardo returned to their native Puerto Rico and both later died.

Rosario went to trial in Middlesex County Superior Court on March 15, 1983. The primary evidence was his confession and testimony from fire investigators. The fire investigators testified that the evidence at the scene indicated the fire had been set in at least two places, that there were pour patterns and evidence of low burning—all indicators of arson. Evans also testified. He identified Rosario as the man he saw with his arm in the air in front of the building, and said he heard glass breaking.

Dr. Martin Kelly, a psychiatrist, testified that there was no evidence that Rosario suffered from any psychiatric condition before the fire, and that his breakdown was an “emotional outburst…having to do with the nature of the circumstances, but not a mental illness.”

The defense also presented a psychiatrist, Dr. Robert Weiner, who testified that Rosario told him he saw the burning building, heard screams of children and broke a window, but could not get in. Later that day, he could not get the smell of smoke out of his nostrils and kept hearing the voices of the victims. Weiner said Rosario told him he heard the voices of “demons, or devils…saying to him: ‘Death, Death.’” Weiner said Rosario repeatedly said, “I am Victor Rosario, the son of God. Jesus Christ is in me.”

Weiner concluded that Rosario could not make a rational and intelligent statement to police because he was psychotic. Rosario, according to Weiner, “went to the police station with a very marginal amount of sanity…and he broke during the time in the police station.”

On March 28, 1983, the jury convicted Rosario of eight counts of murder and one count of arson. He was sentenced to eight consecutive life prison terms and a concurrent term of 18 to 22 years on the arson conviction.

A motion for new trial was filed in 1985 arguing that the trial judge had erroneously prevented the defense from introducing evidence that from 1974 to 1978, there were 55 fires at 22 other buildings owned by the family that owned the Decatur Street building. That motion was denied.

Later that year, the Massachusetts Court of Appeals upheld his convictions. In 1994, another motion for a new trial was filed asserting that he had received an inadequate legal defense. The motion said that his trial defense lawyer had a conflict of interest because he was facing a prosecution for vehicular homicide at the time of the trial. That motion was denied as well.

Rosario was denied parole in 1997 and again in 2002. In 2006, Andrea Petersen, an appellate attorney in Boston, began reinvestigating Rosario’s case. She was joined by Esther Horwich and several years later by the New England Innocence Project and the Massachusetts Committee for Public Counsel Services Innocence Program. In 2012, attorneys Lisa Kavanaugh of the CPCS Innocence Program and Andrea Petersen filed a third motion for a new trial. A hearing on that motion was held over six days in March 2014.

Arson expert John Lentini, who began re-examining the case in 2006, testified that the evidence cited by the Lowell fire officials as proof of arson was outdated and had been debunked by years of scientific testing. He testified that the burn marks relied upon by the original fire investigators were just as likely caused by “flashover,” an effect in which gases from a small fire heat up a closed room and suddenly every flammable object explodes in flames, leaving the impression that the fire could have started in more than one place. The aftermath of flashover reveals pour patterns, low burning, and other phenomena that had been said in the past to be evidence that a flammable liquid was used. Lentini also said that a Molotov cocktail made with a 12-ounce beer bottle would likely burn out in about 10 seconds—not enough time to ignite wood, such as the stairs and floor. Moreover, no physical evidence consistent with Molotov cocktails, save a few bits of broken glass, was found at the scene.

Dr. Craig Beyler, a fire protection engineer, agreed with Lentini's conclusions. He further testified that the fire investigators who examined the debris after the fire was extinguished failed to follow established protocols and reached their conclusion of arson based on the rapid growth of the blaze before they entered the building. Beyler testified that the evidence suggested the fire had been burning for some time before it was noticed. Opening a door and breaking a window allowed oxygen inside, and the fire developed rapidly. It was, Beyler said, impossible that the eyewitness had seen Rosario set the fire with a Molotov cocktail.

Carmen Garcia, who was Rosario’s girlfriend at the time of the fire, testified that he was a heavy drinker, usually consuming as much as two cases of beer in addition to vodka or rum on weekends. He always drank a six-pack of beer every night after work. Two weeks before the fire, Rosario lost his job at a mattress factory and began drinking a case of beer daily.

Garcia’s son, Andres, who was 10 at the time of the fire, testified that Rosario usually had a beer or a drink in his hand when he was home. He recalled coming home and finding Rosario sitting on the couch with a bandage on his arm. He was rocking back and forth and kept repeating, “The children. The children. I tried to save the children.”

Dr. Judith Edersheim, a forensic psychiatrist, testified that she believed Rosario was suffering from severe alcohol withdrawal at the time of his interrogation and as result was having hallucinations, some of them auditory.

A sworn affidavit from Ramon Nieves, who was the translator during Rosario’s interrogation, was presented at the hearing. Nieves said that Rosario kept referring to the devil. He also said that Rosario told him that he had injected heroin earlier in the evening, and that he kept rubbing his arms as if insects were crawling on him, saying, “Get it off of me.”

In the statement, Nieves said that Rosario never said he acted as a lookout for others who set the fire and never said he threw a Molotov cocktail into the building. According to Nieves, a detective made up those allegations during the interrogation and included them in the written statements that Rosario signed. By the time he signed the last two statements, Nieves said, Rosario was incoherent.

In July 2014, Middlesex County Superior Court Judge Kathe Tuttman vacated Rosario’s convictions, granted him a new trial, and ordered him freed on bond.

“I conclude that the defendant has met his burden to establish that justice was not done in this case based on evidence implicating the voluntariness of his confession as well as evidence regarding developments in fire science investigation,” Judge Tuttman said in a 100-page ruling.

The prosecution appealed, and in May 2017, the Massachusetts Supreme Judicial Court upheld Judge Tuttman's ruling. On September 8, 2017, the prosecution dismissed the charges.

– Maurice Possley

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Posting Date: 9/18/2017
State:Massachusetts
County:Middlesex
Most Serious Crime:Murder
Additional Convictions:Arson
Reported Crime Date:1982
Convicted:1983
Exonerated:2017
Sentence:Life
Race:Hispanic
Sex:Male
Age at the date of crime:24
Contributing Factors:False Confession, False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No