A Quest for Justice: The Story Behind the Exoneration of Victor Rosario
by Andrea Petersen
Many of the exonerees you read about are in prison for decades before they are able to get their convictions overturned. Because they were found guilty, these innocent men and women lost access to the courts, attorneys, often their families, any means of income, and most forms of communication with the outside world. The protections of the justice system simply evaporate for the convicted who are, of course, no longer “innocent until proven guilty.” This is the story of my (and many others)[1] eleven-year journey working with Victor Rosario to obtain his freedom.
In the spring of 1982, Victor Rosario happened to witness a fire on Decatur Street in Lowell, which destroyed an apartment building and killed eight people, including five children. He heard the children screaming in the building and tried to rescue them by putting his fist through a window. The inrush of air only fueled the fire. Victor’s attempted rescue was reported in the local newspaper the following morning, and that gave the police a name: Victor Rosario. They brought him to the station for an eight-hour, all-night interrogation, after which he signed a confession that fit the theory of the fire investigators who claimed to have found evidence of arson. The police also found an eyewitness who had seen Victor at the fire. The prosecution claimed Victor threw a Molotov cocktail into the building to start the fire. Victor was convicted of arson and eight murders in 1983.
“I believed him.”
When I first met Victor at MCI-Norfolk in 2006, he had already served 23 years for a crime he did not commit. Since his conviction, Victor had been represented by seven attorneys who did not believe in his innocence. Victor also had two unsuccessful parole hearings, where the board asked one question: If you did not do it, who did? When I visited Victor in prison, he told me he did not set the fire and never knowingly signed a confession. He was seeing snakes and devils in the interrogation room and had no idea where he was.
I believed him.
I had only been practicing law for a few years. I graduated from Boston College Law School in 1986 and accepted a job offer from a corporate law firm. I was attracted by the money, I confess. But when a partner asked me to find a way for a highly endowed university to avoid paying a newly imposed tax for using certain chemicals in its research, and I asked, “Why?,” we both recognized I was not in the right place.
I took off fifteen years to play with my newborn daughter.
I eased myself back into work by interning for a brilliant criminal trial attorney who reminded me of Atticus Finch. I wrote motions and appellate briefs for him as well as other attorneys, one of whom was working on a motion for Victor’s new trial. Even with my limited experience, I recognized that the brief I was editing was not persuasive. My faith in Victor encouraged him, and he begged me to take his case, which of course I could not do — that would have been unethical because he already had an attorney, and I did not have the experience to appeal a murder case. I said I would try to get him another attorney if he paid his bills and let go of his current attorney.
Months later, I was sitting in the Norfolk Prison attorney room when Victor came in saying, “Andrea, this case is your baby.” I had explained at length that I could not take the case and got up to leave, but Victor was between me and the door. He told me he had consulted the Bible, looking for advice from God. The Bible opened to the story of Solomon, who was about to slice a baby in half in order to settle a dispute between two women who both claimed to be the mother of the child. Solomon awarded the baby to the woman who cried out she was not the mother to save her child from being killed. “That is how I know this is your case. You are willing to give it up for my sake.” I was astonished by his interpretation, even more by his sense of urgency and unfaltering belief that I would win the case. Victor told me I would be part of an important victory that many people would share. He was right, and indeed many people helped to bring the case to that conclusion 11 years later.
The innocent prisoner’s soul-numbing perseverance is the fuel that keeps his lawyers on the case.
Victor had no access to attorneys, he could not look in the yellow pages or call the bar associations and explain he needed a lawyer because he was innocent. So, a prisoner who encounters a promising attorney must use all his powers of persuasion. Regardless of Victor’s faith in me, though, I would have been lost without mentorship from a long-time appellate attorney, Esther Horwich, and others.
The Three-Legged Stool
1. The Fire Evidence
Shortly after agreeing to take Victor’s case, I read a Boston Globe story about John Lentini, a nationally known fire investigator. While working for the prosecution in 1990, he discovered that what “experts” had believed about the development of fires was wrong. As he told it, he had come within 24 hours of sending a man to the electric chair when he made his discovery. Since then, he had been on a crusade to save the countless men and women whom he suspected were in prison based on false fire evidence. I wrote to him about Victor’s case. He agreed that it was a good example of a conviction based on false fire evidence and offered to work on the case even before we discussed money. That was lucky because I did not have any money.
Obsessed as I was with Victor’s case, I talked about it with everyone I encountered. A high school friend asked if I needed money. It was a startling question. I thought I would have to beg and cajole to get money when the time came, but here it was, and a sizable sum at that. A few days later, I was having lunch with a friend who had just been made the executor of an estate, and his duty was to give the money away to charity. He already wanted to donate to NEIP, so it was not a hard sell to get him to double the amount I already had. And when I told this remarkable story to a cousin of mine, he doubled the sum again. Serendipity? What would you call it? I felt I was channeling Victor’s spirit.
Fire fighters had long been refusing to accept the discoveries in the field of fire investigation that were proving them wrong. I wanted more than one expert in my arsenal to explain the errors in Victor’s case. I called the head of curriculum for fire investigation at Homeland Security, where most firefighters get trained. He laughed at my request and said of course he could not testify on behalf of the defense in an arson case. But then, after a pause, he said in a month he would reconsider my proposal because he would be retiring and would like to enter the lucrative expert market.
A couple of months later, I received the course outline for fire investigation at Homeland Security. The course was called “Myth and Legends in Fire Investigation.” Every piece of evidence relied upon by the Decatur Street fire investigators was a myth, according to the course outline. The outline perfectly discredited the investigators who had found evidence of arson in Victor’s case.
We also brought on Craig Beyler from Hughes Associates, Inc., a private consulting firm, who had actually done experiments proving that the amount of accelerant in a Molotov cocktail thrown onto a bare wooden floor could not start a fire with the magnitude of the Decatur Street fire. The small amount of liquid in the bottle would burn for about ten seconds and then die out. This was actually known at the time of Victor’s trial, but three prosecution experts had testified otherwise.
In the course of examining the fire evidence again, we also discovered that the original fire investigators testified contrary to what their own slides showed. All to fit the prosecution theory of arson.
2. The Eyewitness Account
In addition, given that the eyewitness had not seen Victor throw anything and had not seen a flaming bottle of accelerant flying through the air, the prosecution had no basis whatsoever for arguing that the eyewitness had seen Victor throw a Molotov cocktail into the building. It was more likely that the eyewitness had seen Victor just after he punched through the window in his failed attempt to rescue the screaming children.
Winning a motion for new trial is much more time consuming and expensive than winning a conviction.
We had enough evidence to refute the fire evidence and the eyewitness evidence, but I was not sure that it was enough to win a motion for new trial. Larry Hammond, an innocence project attorney in Colorado, advised me to think of the case as a three-legged stool. One leg was the fire, the second was the eyewitness, and the third was the confession. To win, I had to knock off all three.
3. The False Confession
The biggest stumbling block was the false confession, a concept that was not well understood at the time of Victor’s trial. The Commonwealth’s medical expert testified that only a crazy person would confess to a crime he did not commit. The police admitted that Victor had a breakdown during the interrogation. He was on the floor, babbling incoherently about the children while clutching convulsively at a chair leg. But then, according to the police, he recovered and voluntarily resumed his confession. The trial judge ruled that Victor was only temporarily psychotic and his confession was voluntary.
In 1985, some states mandated the recording of confessions. From then on, studies began to show that certain interrogation tactics could induce people to make false confessions. Richard Ofshe had done some pioneering work in the field. From the District Attorney’s trial notes, Ofshe learned that the police had indeed put words into Victor’s mouth. Ofshe concluded that the police tactics used on Victor could have caused an innocent man to confess.
I also consulted with Dr. Judith Edersheim, a truly remarkable doctor. She spent months and months reviewing every medical record she and I could extract from the prison medical staff and based on what she found, she had a hypothesis: Victor was in the throes of delirium tremens during the interrogation. As she explained to me, the DTs were qualitatively different from a psychotic episode. During alcohol withdrawal, a person’s brain is not functioning at all. Was that possible? She asked me.
I interviewed Victor and his family and learned he had been a very heavy drinker, and he had suddenly stopped drinking after he witnessed the eight deaths by fire, which he believed was an image of hell and a warning. He visited a priest who blessed him and gave him a bible. The religious experience moved Victor to give up both drinking and smoking. He never started again. Two days later, during the police interrogation, the effects of sudden alcohol withdrawal rendered him delirious. Delirium follows a certain characteristic time line, and Dr. Edersheim used the family interviews as well as voluminous medical records to show that Victor’s progression of symptoms followed the time line precisely.
Victor’s previous attorney had obtained an affidavit from the police translator who had been present during the interrogation. When I spoke to the translator, his description of Victor’s behavior confirmed the hypothesis of delirium tremens. The translator even admitted that he never translated Victor’s last statement. Notwithstanding the police testimony to the contrary, the translator averred that Victor was so incoherent by the end of the interrogation that he could not understand what was being said to him.
Now we had attacked all three legs of the prosecution’s argument. At this point, I was joined by co-counsel Lisa Kavanaugh. The big question was whether the trial court would consider our evidence new, which was nearly always a requirement for granting a new trial at the time. At our evidentiary hearing, we brought in two fire experts, two medical experts, two investigators, and two of Victor’s family members. Lisa conducted a brilliant hearing that decimated the prosecution's case.
And we won!!!!!
In our appellate brief, we argued that regardless of whether the evidence was new, Victor deserved a new trial because justice had not been done at the original trial. As NEIP’s amicus brief eloquently phrased the argument, the “cascade of errors” precluded a fair trial for Victor Rosario. We won and made new law that should help other innocent prisoners win a new trial.
Giving birth to my daughter and walking out of the Middlesex courthouse with Victor and Lisa were the two greatest moments in my life so far.
[1] There are too many people to thank for their help in this case, but here are just a few that are not mentioned above: John Wood, Debra Krupp, Stephanie Page, Veronica White, Sharon Beckman, Stephanie Hartung, and Joanne Daley.