Says Defense Relied on “Gossamer Inferences and Speculation” in Motion

BOSTON, Sept. 17, 2012—A man convicted twice of murdering two men in Boston’s North End more than a quarter century ago will not get a third trial, the state’s chief justice for administration and management decided today.

Suffolk County District Attorney Daniel F. Conley, who opposed the motion for a new trial by FRANK DiBENEDETTO and a co-defendant in the 1986 murders of Frank Chiuchiolo and Joseph Bottari, praised Judge Robert Mulligan’s 27-page order.

“The first jury got it right in 1988, the second jury got it right in 1994, and Judge Mulligan got it right in this decision,” Conley said. “The evidence against these defendants was and remains overwhelming, and the depth and breadth of analysis in these findings makes that inescapably clear.”

After the Supreme Judicial Court overturned their 1988 convictions in the 1986 murders, Mulligan presided over the second trial of DiBenedetto and LOUIS COSTA as a Suffolk Superior Court judge in 1994 and had previously denied the motion before the SJC remanded it back to him for further findings on additional evidence.

Specifically, DiBenedetto claimed that 2004 testing of DNA found on sneakers he 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 – he and Costa claimed to have “new evidence” of their innocence.

Mulligan found otherwise and denied their 2005 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.

“That new evidence is overwhelmed by the strength of the case which the Commonwealth provided against the defendant,” Mulligan wrote, saying the 2004 DNA test results had “at most nominal exculpatory value …. [I]t would be reasonable to infer that the sneakers analyzed in 2004 were simply not the shoes the defendant was wearing at the scene of the crimes.”

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 Slye 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.”

Citing a 1986 SJC decision, Mulligan laid out the requirement 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.”

DiBenedetto was represented by attorneys Max Stern and Dennis Shedd. Costa is represented by attorneys David Apfel and Paul Ware. Costa’s case will be heard tomorrow by a single justice of the SJC as he tries to have Mulligan removed from his case. Conley’s office is opposing those efforts as well.

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All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.