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Citing DNA, inmate seeks murder retrial

Says sneaker evidence is not blood of victim

By Jonathan Saltzman
Globe Staff / July 4, 2005

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Eleven years after he was convicted of helping to execute two men in an icy, deserted North End park, Frank DiBenedetto is seeking a new trial based on evidence he says refutes the most damning piece of the state's case: blood allegedly found on his high-top sneakers.

During the 1994 trial, a Suffolk County prosecutor argued that DiBenedetto had to have been present when the men were shot 23 times in Slye Park overlooking Boston Harbor, because his size-11 1/2 Nike sneakers bore the blood of one of the victims.

But now DiBenedetto wants the conviction set aside because recently conducted laboratory tests determined that DNA on the shoes could not have come from either of the dead men, according to his lawyer.

''It turns out it's clearly not the blood of the victims," said the lawyer, Max Stern, who in May filed a motion in Superior Court for a new trial. ''If we really care about justice, and the appearance of justice, this guy should have another shot at it."

Prosecutors, however, deny that the test results vindicate DiBenedetto in the murders of Frank Chiuchiolo, 20, and Joseph Bottari, 23, which authorities said were drug-related. David Procopio, a spokesman for District Attorney Daniel F. Conley, said the state presented ''other significant evidence beyond the sneakers" and will file a response opposing the motion shortly.

Since 1996, at least 10 wrongful convictions for murder, rape, and other crimes have been set aside in Suffolk County, generally through DNA evidence. In most cases, the evidence has provided irrefutable proof that the wrong man had been convicted -- as in the case of Anthony Powell, who was freed in March 2004 after genetic testing proved he could not have been the source of semen recovered from a rape victim.

The DNA analysis in DiBenedetto's legal challenge is different because it contradicts evidence presented by the state but stops short of conclusively proving innocence, according to Joseph F. Savage Jr., chairman of the New England Innocence Project.

''If there's other evidence [of guilt], then the DNA results might not be relevant," said Savage, whose group has used DNA evidence to help free at least five of the wrongly convicted defendants.

Still, DiBenedetto's sister, Anna DiBenedetto, a Boston restaurateur, said she thinks the DNA analysis warrants a new trial. The allegation that Chiuchiolo's blood was on her brother's sneakers was the only physical evidence offered by the state in an otherwise shaky case against DiBenedetto and a codefendant, Louis Costa, she said.

''He's always maintained his innocence," she said of her 39-year-old brother, who is incarcerated at MCI-Norfolk. ''Now, with DNA, the truth comes out." Relatives of Chiuchiolo and Bottari did not respond to requests for interviews relayed by prosecutors.

The two men were killed on Feb. 19, 1986, around 9:30 p.m. Chiuchiolo was shot seven times, including five blasts to the head, according to court papers. Bottari was shot 16 times, including six times in the head.

Four days later, police arrested DiBenedetto, of the North End, and two friends, Costa, who was 16 at the time, and Paul Tanso, who was 21.

The evidence against them included an account from Richard Storella, who said he drove his friends Bottari and Chiuchiolo to the park to steal cocaine from DiBenedetto, with whom Storella was also a friend. Storella, who received immunity from prosecution, said he watched DiBenedetto, Costa, and Tanso turn the tables on the would-be thieves and open fire with three guns.

The other evidence included an account by Joseph Schindler, a lawyer who said he witnessed the shooting from his apartment overlooking the park and identified the alleged gunmen in a police lineup.

Both DiBenedetto and Costa were tried together in 1988 and found guilty of two counts of first-degree murder. But the convictions were reversed by the state Supreme Judicial Court because Storella fled to California to avoid testifying -- his account to authorities was read in court -- and was unavailable to be cross-examined by defense lawyers. The men were retried together in 1994 and convicted.

(Tanso was convicted in a separate trial, but the SJC reversed it for the same reason. He was acquitted at a second trial, where he was represented by famed defense lawyer F. Lee Bailey.)

It was at the second trial of DiBenedetto and Costa that Assistant District Attorney Mary K. Ames introduced evidence that the sole of DiBenedetto's left sneaker had tested positive for the possible presence of human or animal blood.

Although the test was not definitive, Ames hardly equivocated in her closing argument to jurors, characterizing it as the ''one piece of real evidence . . . that we have" that DiBenedetto came into contact with blood ''as he blasted into the body of Frank Chiuchiolo."

But Stern, who represented DiBenedetto at the second trial, said tests he recently paid a California laboratory to do categorically determined that minute amounts of human DNA found on the sneakers could not have come from Chiuchiolo and Bottari. Such testing was unavailable at the first trial; prosecutors relied on a less sophisticated test by the Boston Police Crime Laboratory to detect the possible presence of blood.

The rest of the state's case was weak, Stern said. Storella repeatedly gave authorities contradictory accounts of the murder. And Schindler identified the three alleged gunmen at a lineup only after seeing photographs of two of the suspects in a Globe article, Stern said.

Procopio, Conley's spokesman, countered that the trial judge emphasized to jurors that the blood tests were not definitive. In addition, Procopio said, the shoes have been tested by the state and defense so many times that blood from the murder victims could have washed off.

Jonathan Saltzman can be reached at jsaltzman@globe.com