The Supreme Judicial Court today ordered a Superior Court judge to consider whether a DNA sample from the sneaker of one of three men convicted of pumping more than 20 rounds into two men in 1986 warrants a new trial.
Frank DiBenedetto and Louis R. Costa were convicted, along with Paul Tanso, of first-degree murder for the shooting deaths of Joseph John Bottari and Frank Angelo Chiuchiolo in a North End park on Feb. 19, 1986. Chiuchiolo had been shot seven times, five times in the head, and Bottari had been shot sixteen times, six times in the head.
The three were convicted in part based on testimony from a man who knew the three and claimed he saw them murder Bottari and Chiuchiolo and from a lawyer who went to his window to investigate what he thought were fireworks but which turned out to be flashes from the murder weapons in the nearby park.
In 2005, however, DiBennedetto and Costa filed for a new trial based on DNA sampling - unavailable at the time of his trial - that he said showed the blood found on his sneaker did not contain DNA from either victim. Given the violence of the deaths and the amount of blood, they said this amounted to vindication that they were innocent because somebody who had repeatedly shot two men at point-blank range would be unable to avoid blood spatter from them.
In its ruling the court agreed the DNA testing met one of two accepted standards for overturning a verdict: That it was new evidence. And they agreed that the testimony from the two witnesses was suspect - one because he changed his story repeatedly, the other because he was testifying some eight years after the murder.
However, the justices added that that is not necessarily enough to overturn the rest of the case against the two. That, the court ruled, is up to a Superior Court judge to consider.