Wrongful Convictions Clinic Helps Victor Rosario Get New Trial After 32 Years Behind Bars

Students find new evidence that casts doubt on a 1982 arson verdict

After spending 32 years behind bars for a crime that new evidence shows was never proven, Victor Rosario was granted a new trial and released on bail this summer, in part thanks to the work of a dedicated group of BU Law students and their professor.

Rosario was convicted in 1982 of setting a fire that killed eight people in Lowell, Massachusetts. He has maintained his innocence ever since, and after years of work by the Committee for Public Counsel Services Innocence Program (CPCS) in cooperation with the New England Innocence Project (NEIP) and two private Boston attorneys, assisted by the BU Law Wrongful Convictions Clinic, on July 7, a Superior Court judge overturned the conviction.

Professor Stanley Fisher, one of the founders of the NEIP, had served as director of BU Law’s Wrongful Convictions Clinic for more than ten years prior to his retirement this spring. Fisher spent much of his career researching and working to overturn wrongful convictions, and is a widely recognized authority in the field. In all his years of supervising students on these cases, he says, Rosario is the first prisoner he has seen walk free.

“Most of the prisoners who apply to the Innocence Project can’t be helped,” says Fisher. “For us to be able to do anything, there must be some sort of new evidence to work with.”

In Rosario’s case, two major issues cast “real doubt on the justice of the conviction,” according to the ruling. These issues, says Fisher, were “advances in the area of arson science and new research in false confessions.”

Andrea Petersen, a Boston lawyer who has represented Rosario for eight years, came to the NEIP asking for support in preparing a motion for a new trial. Petersen’s request was referred to Fisher and his students, beginning the collaboration that would ultimately earn Rosario’s freedom.

Petersen says that one of her favorite things about working with the BU Law students was how much they believed in what they were doing. “It was really nice to work with these young people who really believe in Victor and the wrongfulness of his conviction,” she says, “particularly because Victor is such an extraordinary human being.

“One of the really lasting things the students did was to go through every single transcript from the original trial and all the hearings—masses of documents—and summarize and index them,” says Petersen. “I can’t tell you how helpful that was and still is!”

“There was a large amount of paperwork, and our job was to review and condense the material into relevant sections for Mr. Rosario’s appellate attorneys, who would be writing and arguing his appeal,” says Mike Ayzen (‘11), a former clinic student. Ayzen also worked on creating a timeline of events as told by various witnesses. “There were so many moving parts that the timelines were going to be used in order to pick out inconsistencies in various witness testimonies.”

Fellow clinic student Geoff Derrick (‘12) was tasked with researching advances in arson science. “There was a theory that the particular burn patterns in the house in Lowell could only have been caused by a Molotov cocktail,” says Derrick. “The trajectory of arson science has really changed since the original trial, and we now know that many of these old theories and methods were thoroughly unreliable.” Derrick compiled a memo for Petersen describing new tools and methods available to investigators, and supporting the argument that the fire Rosario allegedly set could well have been accidental.

Students also dug into new findings regarding false confessions. When he was arrested, Rosario confessed to setting the fire, but it was later shown that, because he was suffering from alcohol withdrawal, he was under extreme mental stress, and likely not in his right mind. In addition, Rosario spoke very little English, and required an interpreter.  Following the trial, the interpreter signed an affidavit stating that Rosario was mentally disturbed at the time of his confession, making it impossible for the interpreter to translate everything directly, and casting doubt on the validity of Rosario’s confession.

Students researched coerced confessions, delirium tremens science, and testimony by experts on false confessions, summarizing their findings for appellate counsel.  With the help of the students’ research, Petersen and the rest of the appellate team were able to cast enough doubt on the 1982 ruling to merit a new trial.

Rosario, his family, his attorneys, and the students are overjoyed by the results of their years of work. By all accounts a warm, kind, and remarkable man, Rosario was ordained as a minister while behind bars. Upon his release, he preached what Petersen described as “a beautiful sermon” at The Congregation First Baptist Church in Dorchester.

Rosario shows no rancor over his false imprisonment, only joy at his release, says Fisher. In addition, says Petersen, “during his time in prison, he achieved something that very few inmates do: the complete trust of the inmates and the prison guards, all of whom were overjoyed at his release.”

“It’s wonderful to get an outcome like this,” says Derrick. “It makes you feel really good about the work you’re doing.” In fact, Derrick was so inspired by his law school experiences and work in the clinic, that, immediately after graduation, he continued working on wrongful convictions cases in the public defender’s office in New York as a BU Law Public Service Fellow. Currently he is a law clerk to the Honorable Catharine F. Easterly of the Washington, DC, Court of Appeal.,

Ayzen says of the decision: “I honestly feel grateful. Grateful that there are people that care and people that are willing to go above and beyond for what they know is right. I feel joy knowing that Mr. Rosario can live his life breathing free air and spending time with family and friends in an environment free of bars and orders. I feel that even being a small part of this case brought me inspiration. It feels good to know that not giving up and fighting uphill battles can lead to a person getting some real justice. I am happy to have been a small part of this battle.”

The inspiration Ayzen found in the Wrongful Convictions Clinic has stayed with him through his early legal career. “The clinic was one of the reasons I decided to become a public defender when I left school,” he says, “and the things I learned in the clinic gave me a foundation for the work that I would be doing.”

“This is the very essence of learning by doing,” says Ayzen of the clinical opportunities at BU Law. “Some of my best moments have come out of clinic opportunities.” Ayzen now lives in Los Angeles, where he has started the Theta Law Firm, LLP, specializing in criminal and immigration law.  Before moving to California, Ayzen was an attorney with the Committee for Public Counsel Services (CPCS), representing indigent clients in western Massachusetts. 

 

Although the state is appealing the decision, Petersen is confident that Rosario’s grant of a new trial will be affirmed. “The trial judge’s 99-page decision was carefully reasoned and well supported,” she says.

stanley fisher victor rosario

Professor Stanley Fisher and Victor Rosario

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Reported by Sara Womble

Last edited August 29, 2014

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