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SJC-12115

                COMMONWEALTH   vs.   VICTOR ROSARIO.



         Middlesex.    November 8, 2016. - May 11, 2017.

 Present:   Gants, C.J., Botsford, Hines, Gaziano, Lowy, & Budd,
                               JJ.1


Burning a Dwelling House. Homicide. Fire. Constitutional Law,
     Admissions and confessions, Voluntariness of statement.
     Evidence, Admissions and confessions, Voluntariness of
     statement. Practice, Criminal, New trial, Admissions and
     confessions, Voluntariness of statement.



     Indictments found and returned in the Superior Court
Department on June 30, 1982.

     A motion for a new trial, filed on October 19, 2012, was
heard by Kathe M. Tuttman, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Jessica Langsam, Assistant District Attorney (Thomas F.
O'Reilly, Assistant District Attorney, also present) for the
Commonwealth.
     Lisa M. Kavanaugh, Committee for Public Counsel Services
(Andrea Petersen also present) for the defendant.

     1
       Justice Botsford participated in the deliberation on this
case prior to her retirement.
                                                                     2


     M. Chris Fabricant, Karen Newirth, James C. Dugan, Vincent
P. Iannece, Lara S. Kasten, & Kathryn J. Ranieri, of New York,
Stephanie Roberts Hartung, & Sharon L. Beckman, for New England
Innocence Project and others, amici curiae, submitted a brief.


     BUDD, J.   The defendant, Victor Rosario, was convicted in

1983 of one count of arson in a dwelling house and eight counts

of murder in the second degree; all the charges stem from a fire

that occurred in 1982.    In 2012, the defendant filed the motion

for a new trial at issue here,    arguing principally that newly

discovered evidence regarding fire science and the conditions

under which he confessed to the crime warranted a new trial.

Following an evidentiary hearing, a Superior Court judge who was

not the trial judge allowed the motion, ruling that the

defendant had presented newly discovered evidence, which cast

real doubt on the justice of his convictions.     The Commonwealth

appealed.   We allowed the defendant's application for direct

appellate review, and we affirm the order allowing the

defendant's motion for a new trial, but on different grounds.2

     Background.   1.    Evidence presented at trial.   We summarize

relevant evidence introduced at trial.     The fire started on the

first floor of a multi-unit apartment building in Lowell, and

was accompanied by the sound of breaking glass.     The first


     2
       We acknowledge the amicus brief of the New England
Innocence Project, the Innocence Project, Inc., and the Boston
College Innocence Program.
                                                                   3


telephone call to 911 was placed shortly after 1 A.M. on March

5, 1982.   Police officers arrived, minutes later, to find the

building "fully engulfed in flames."   It took firefighters

approximately one hour to get the fire under control.   They

recovered eight bodies from the building, all victims of the

fire.

     Because of the rapid escalation of the fire and the

associated deaths, the arson unit was called to the scene.

Investigators found that the heaviest burning and charring was

concentrated in the front, right, and left sides of the exterior

and first-floor interior of the building.   Based on the burn

patterns in the front hallway, living room, and kitchen,

investigators believed that the fire had been concentrated along

the floor and baseboards.   Although no wicks or flammable

liquids were detected in the apartment, the investigators

believed that the burn marks were consistent with flammable

liquids with points of origin being the front hall and kitchen.

Thus, they concluded that the fire was not accidental and could

have been started by multiple incendiary devices, such as

"Molotov cocktails."3


     3
       A "Molotov cocktail" is a breakable container with a wick
filled with a flammable liquid. It is used by lighting the wick
and throwing the container against a hard surface so that it
breaks, igniting the fluid inside the bottle, and starting a
fire.
                                                                     4


     There were several witnesses to the fire.     One witness had

seen three men standing in front of the building minutes before

the fire; he said that he heard the sound of breaking glass and

then saw a man with his arm raised.4    A woman who lived across

the street stated that the defendant used drugs at her apartment

that night and that she saw him breaking windows after she

learned of the fire.     Red Cross workers treated the defendant

for a cut on his hand at the scene and sent him to the hospital.

     This evidence led investigators to the defendant, who was

interrogated by Lowell police officers at the fire department

headquarters during the night of March 6 and into March 7.     The

defendant, whose first language was Spanish, was provided with a

civilian interpreter.5    Although the defendant appeared calm and

responsive when he arrived at approximately 11 P.M., soon after


     4
       When this witness was asked to make an identification at
the police station, he described one of the men as Puerto Rican
and approximately five feet, five or six inches tall with a thin
mustache, but he did not pick the defendant out of a
photographic array. After the defendant's photograph appeared
in the newspaper the witness told police that he recognized the
defendant as one of the three men who had been on the street
before the fire.
     5
       The interpreter, who was an active leader in the Lowell
Hispanic community at the time, had previously assisted the
Lowell police as an interpreter in at least one other
interrogation in relation to another suspicious fire that had
occurred in the same building. Some months after the
interrogation, before the defendant's trial in early 1983, the
interpreter became a deputy sheriff for Middlesex County at the
Billerica house of correction.
                                                                     5


that he indicated that he was beginning to hear voices, and his

mental state deteriorated over the course of the night.     A few

hours into the interrogation, after the defendant had made two

statements about the fire, one of the officers told the

defendant that they had "certain information" and wanted "to

know if he was part of it."     The defendant broke down, sobbing

and praying on the floor.     The breakdown lasted ten to twenty

minutes, but the defendant later appeared to recover.

    The questioning resulted in three statements prepared by

the police interrogators and signed by the defendant.     In the

first, signed at approximately 12:15 A.M., the defendant

admitted to being at the scene of the fire and stated he broke a

window to help rescue children from the building.     Hours later,

he signed a second statement, admitting to being at the scene as

a "look out" for two other men, one of whom threw a Molotov

cocktail through a window in the building.     Finally, toward the

end of the questioning, the defendant signed a final statement

indicating that he and the other two men threw Molotov cocktails

into the building, starting the fire.     The statement also said

that before they had left for a bar that evening, he watched the

two other men make three Molotov cocktails in the basement of
                                                                        6


his house;6 they planned to start the fire because one of the men

"wanted to get [one of the victims] over drugs."     At

approximately 6:30 A.M., the defendant was arrested after

signing the final statement.

     Following his booking, the defendant descended into total

incoherence.   He repeatedly said that he was "the son of God,"

believed that the back of his head had been cut off, and did not

recognize his girl friend when she came to visit him.     He

eventually was transferred to the house of correction in

Billerica for a psychiatric examination.     State psychiatrists

there and at Bridgewater State Hospital (hospital) diagnosed the

defendant as psychotic.     He was treated at the hospital and

eventually recovered.     His symptoms never recurred, and the

defendant was deemed competent to stand trial.

     The defense theory of the case at trial was that the

defendant was at the scene of the fire because he and his

friends were walking home from a bar and stopped by a house

close to the fire to purchase drugs.     The defendant, who

testified, told the jury that he hurt his hand when he broke a

window in his attempt to rescue children from the flames.        Both

     6
       When the police searched the common basement of the
defendant's apartment building, they found a gasoline can and a
paint can with a beer bottle and other trash inside. At an
apartment belonging to one of the other men, the police found a
can of "Red Devil" paint remover, which had been purchased days
before the fire.
                                                                    7


in a motion to suppress and at trial, the defense relied on the

diagnosis of psychosis to argue that the defendant's statements

during the interrogation were involuntary.    The defendant

testified that he did not remember making any of the statements

attributed to him and that he had never heard of a Molotov

cocktail before the interrogation.    As the voluntariness of his

confession was at issue throughout the trial, the trial judge

instructed the jury on the humane practice rule.7   During their

deliberations, the jury requested, but were not provided,

transcripts of the doctors' testimony, and the doctors' reports

were not admitted into evidence.   The jury convicted the

defendant of arson and eight counts of murder in the second

degree.

     2.   The motion for new trial.   In 2012, the defendant filed

his motion for a new trial, citing newly discovered evidence.

The motion judge conducted an evidentiary hearing over the



     7
       The humane practice rule requires that the Commonwealth
prove beyond a reasonable doubt that the statement was voluntary
before the jury may consider it. See Commonwealth v. Tavares,
385 Mass. 140, 152, cert. denied, 457 U.S. 1137 (1982). If the
voluntariness of the statement is contested, the judge must also
find that it was proved beyond a reasonable doubt that the
statement was voluntary. Id. The judge instructed the jury to
examine the defendant's statements made during the interrogation
in order to determine whether they were "the product of
coercion, threats, physical or psychological intimidation, which
had the result of overriding or overbearing the free will of the
defendant."
                                                                    8


course of six days in 2014.    She credited the following evidence

introduced at the hearing.

     a.   The interrogation.   According to the affidavit of the

interpreter who had assisted the police at the time the

defendant was interrogated in 1982,8 despite the written

statements, the defendant had actually neither stated that he

acted as a lookout, nor that he threw a Molotov cocktail into

the building.   Instead, the officers themselves suggested these

details during the interrogation and then included them in the

written statements that the defendant signed.    Although the

first and second statements were interpreted from English into

Spanish before the defendant signed them, the third statement,

the only one in which he admitted to throwing a Molotov cocktail

into the house, was not.   The interpreter also indicated that

the defendant had been incoherent at the time he signed the

second and third statements, and that even before his breakdown,

the defendant had referred constantly to being possessed by the

devil and to being the son of God.   He also told the interpreter



     8
       By 2014, the interpreter had moved to Puerto Rico.
Although he initially agreed to travel to Massachusetts to
testify at the evidentiary hearing, he later refused to appear
voluntarily. Insofar as relevant here, as the interpreter could
not be compelled to appear, the motion judge allowed defense
counsel to introduce into evidence a redacted version of the
interpreter's affidavit, signed in 2009, for the purposes of
this most recent new trial motion.
                                                                    9


that he had injected heroin before coming to the station for the

interrogation.

    The defendant's two psychiatric experts at the new trial

motion hearing testified that rather than psychosis, the

defendant suffered from delirium tremens (DTs) at the time of

his confession.   DTs, also known as alcohol withdrawal delirium,

begins when a person who drinks a significant amount of alcohol

abruptly reduces his alcohol intake.   It is a neurologic,

neurocognitive disorder that disrupts neurotransmitters in the

brain.   The condition is marked by derangement of mental

processes resulting in disorientation, confusion, behavioral

disturbances and hallucinations.   It leaves one highly

suggestible, unable to process information reliably,      and unable

to make rational decisions.

    The symptoms of the condition worsen over the course of

five days.   Within twelve hours, the person may be confused or

agitated but knows where he is and who he is.   By the second day

of withdrawal, the person may experience auditory

hallucinations, as well as a sense of persecution.   The most

characteristic symptoms of DTs develop on the third day, when

the person may experience visual, tactile, olfactory, and

auditory hallucinations.   From the third day onward, the person

becomes extremely disoriented and agitated, and other functions

of the nervous system start to break down.   The hallucinations
                                                                   10


peak at day three or day four.   DTs is an acute syndrome and

subsides as the person recovers from alcohol withdrawal,

typically beginning at around days five, six, and seven.

    The defense introduced evidence that the defendant was

particularly prone to DTs due to a prior serious head injury and

a history of heavy drug and alcohol abuse:   he drank

approximately a case of beer a day and hard liquor, often

beginning at about 9:00 A.M.   He had been drinking more heavily

than usual in the days prior to the fire, but following the

fire, he dramatically reduced his intake.    His girl friend's son

and others saw him behaving in extreme, unusual ways they had

never seen before.   As a result, the defense experts opined that

as the defendant arrived at the police station for the

interview, forty-six hours after the fire, he was finishing day

two of his withdrawal and entering day three, and he began to

experience full-blown symptoms of DTs.   He was very suggestible

at this time and could not make rational decisions or process

information reliably.

    The defense experts also testified to their opinions

concerning why the previous psychiatrists had diagnosed the

defendant incorrectly.   They hypothesized that because the

previous psychiatrists did not examine him when his symptoms

were most aligned with delirium, by the time the defendant was

diagnosed, eight or more days after the fire, his alcohol
                                                                   11


withdrawal had progressed such that the residual symptoms of DTs

might present as a psychotic disorder.   One of the experts

further hypothesized that the language barrier made it difficult

to get a complete history, including the defendant’s history of

alcohol abuse.

    b.   The fire science.   The defendant additionally presented

two fire science experts who testified that more recent fire

science research, some of which was not completed until 2005,

had led to new protocols for evaluating the source of a fire.

Applying these protocols to the fire in question, the experts

both determined that, rather than being arson started with

Molotov cocktails at multiple locations, the forensic evidence

was equally susceptible to an interpretation that the fire was

accidental, involved no flammable liquids, and had a single

point of origin.   The experts explained that "flashover" likely

took place:   flashover is a phenomenon that occurs when the fire

goes from being controlled by fuel to being controlled by the

oxygen available in the room depending upon the ventilation.

Once flashover occurs, there is "full room involvement," where

the intensity of the fire -- and, as a result, the burn patterns

-- may vary depending upon the areas of ventilation.   Once this

happens, the point of a fire's origin cannot be accurately

identified because the fire causes the most damage in areas

where there is more oxygen available, generally near doors and
                                                                  12


windows.   They further explained that because irregular curved

or pool-shaped patterns are common in postflashover conditions

and may result from the effects of hot gases, smoldering debris

and melted plastics, the presence of flammable liquids should be

confirmed by laboratory analysis and should not be based on

appearance alone.

    The original fire investigators believed that the fire was

arson because there were two apparently separate areas of

heavier damage that did not appear to have communicated with one

another.   However, the defendant's experts explained that the

fire likely traveled from the living room into the hallway and

kitchen because there was more oxygen in those areas.   One of

the defense experts also opined that one of the original

investigators' conclusions, i.e., that a burn pattern observed

near the rear kitchen door was consistent with flammable liquid

flowing under the door, was a misconception about fire science

because experts now know that hot gases in one room can cause

burning on the other side of a closed door.   Further, the

blistering effect that was thought to be consistent with the use

of flammable liquid is now known to be found in many types of

fires, whether or not flammable liquids were present.

    Ultimately, the defense experts opined that the fire was

consistent with an accidental fire originating in the living
                                                                   13


room or elsewhere, and spreading from there, but that the cause

was undetermined.

     3.   The motion judge's rulings of law.    The motion judge

granted the defendant's motion for a new trial based on the

psychiatric experts' diagnosis of DTs.   She concluded that the

determination that the defendant had been suffering from DTs was

newly discovered, reasoning that it could not have been

uncovered by defense counsel's due diligence by the time of

trial, and that it cast real doubt on the justice of the

conviction, specifically the voluntariness of the defendant's

confession, especially when combined with the coercive

interrogation techniques used by the police.9    See, e.g.,

Commonwealth v. Cowels, 470 Mass. 607, 616-617 (2015).

     She also determined that the fire science evidence was

newly discovered because it did not exist at the time of trial

and differed significantly from the principles relied upon at

that time.   She concluded, however, that, by itself, the new

science evidence did not cast real doubt on the justice of the




     9
       The motion judge also found that information about the
police officers' interrogation practices was newly discovered,
but that it alone would not warrant a new trial.
                                                                   14


defendant's conviction.   See Commonwealth v. Grace, 397 Mass.

303, 306 (1986).10

     The motion judge alternatively ruled that the DTs diagnosis

entitled the defendant to a new trial under a substantial risk

of a miscarriage of justice analysis.   See Mass. R. Crim. P. 30

(b), as appearing in 435 Mass. 1501 (2001).   See also

Commonwealth v. Randolph, 438 Mass. 290, 294 (2002).     She

concluded that the fact that the defendant was experiencing DTs

during the interrogation, combined with testimony about the

interrogation techniques that were used, could lead a reasonable

fact finder to conclude that the defendant's statements were

involuntary.   In her view, this would have been a real factor in

the jury's deliberations, especially in combination with the

newly discovered fire science evidence, and provided a separate

ground for a new trial.

     10
       The judge explained that if a jury found that the
defendant's statement that he threw a Molotov cocktail through
the window was voluntary, then the Commonwealth's theory
regarding arson would have been corroborated, so the new fire
science alone would not suffice. Although the defendant's
statement may have corroborated the arson theory, we note that,
on the other hand, the new fire science evidence may have caused
the jury to question whether the fire was intentionally set and,
therefore, whether the statement itself was corroborated. See
Commonwealth v. DiGiambattista, 442 Mass. 423, 430 (2004) (we
require "corroboration that the underlying crime was in fact
committed"). At any rate, the judge also recognized in a
footnote that if the diagnosis of DTs or the questionable
interrogation tactics undermined the voluntariness of the
statements, the new fire science would cast further doubt on the
justice of the conviction.
                                                                      15


     Although we do not agree that the DTs diagnosis was newly

discovered,11 we nevertheless affirm based upon the totality of

the judge's findings and the "confluence of factors" analysis

developed subsequent to her decision in this case.      Commonwealth

v. Brescia, 471 Mass. 381, 396 (2015). See Commonwealth v.

Ellis, 475 Mass. 459, 481 (2016); Commonwealth v. Epps, 474

Mass. 743, 767 (2016).

     Discussion.   1.    Standard of Review.   A judge "may grant a

new trial at any time if it appears that justice may not have

been done."   Mass. R. Crim. P. 30 (b).    "Our decisions have

crafted a latticework of more specific standards designed to

guide judges' determinations . . . as to whether a new trial

should be ordered."     Brescia, 471 Mass. at 388.   Examples

include, "a serious doubt whether the result of the trial might

have been different had the error not been made," (citation

omitted), Randolph, 438 Mass. at 297 (unpreserved claim of

nonconstitutional error); evidence "would probably have been a

real factor in the jury's deliberations," Grace, 397 Mass. at


     11
       Because the defendant failed to demonstrate that the DTs
diagnosis was not an available diagnosis at the time of trial,
it cannot be considered newly discovered. See Commonwealth v.
Shuman, 445 Mass. 268, 272 (2005) ("evidence does not meet the
test for 'newly discovered' evidence [if] it was available prior
to trial"). To the contrary, defense experts at the motion for
new trial hearing testified that DTs was widely recognized at
the time, and that the defendant was experiencing a "textbook"
demonstration of DTs symptoms at the time of his confession.
                                                                     16


305 (newly discovered evidence); the behavior of counsel "[fell]

measurably below that . . . from an ordinary, fallible lawyer

[and such failing] likely deprived the defendant of an otherwise

available, substantial ground of defen[s]e,'" Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974) (ineffective assistance of

counsel).   See generally Brescia, supra at 388-391.

    As mentioned in Brescia, 471 Mass. at 388, the principle of

finality of convictions remains a valuable and important concept

in our jurisprudence, see Commonwealth v. LeFave, 430 Mass. 169,

175 (1999), as does the principle that a defendant "is entitled

to a fair trial but not a perfect one" (citations omitted).

Brescia, supra at 391. Nevertheless, in rare cases, in order to

fulfill the obligation incorporated in Mass. R. Crim. P. 30 (b)

to determine whether "justice may not have been done," a trial

judge may need to look beyond the specific, individual reasons

for granting a new trial to consider how a number of factors act

in concert to cause a substantial risk of a miscarriage of

justice and therefore warrant the granting of a new trial.        See

Brescia, 471 Mass. at 389-390, 391 n.11.     See also Epps, 474

Mass. at 767-768.     Where the trial judge grants the motion, the

appellate court must determine whether the judge abused his or

her discretion.     See Brescia, supra at 397.   See also Ellis, 475

Mass. at 476.
                                                                     17


    In the Brescia case, the motion judge concluded that

justice may not have been done where the defendant's undetected

stroke affected his ability to testify in a coherent manner, and

could well have damaged his credibility with the jury. 471 Mass.

at 387.   We affirmed the order granting a new trial even though

none of the usual reasons for doing so (e.g., constitutional

error, newly discovered evidence, or ineffective assistance of

counsel) were present.      Id. at 387, 396-397. Similarly in the

Ellis case, we concluded that the motion judge did not abuse her

discretion in granting a new trial where a combination of newly

discovered evidence together with other evidence presented at

trial warranted it. 475 Mass. at 481.     There, the motion judge

had focused on a conflict of interest that was newly discovered;

the victim in that case, a police officer, had participated in a

corruption scheme with the detectives who investigated his

murder.   Id. at 465-466.    The defendant also presented evidence

showing that the investigators failed to pursue other leads.

Id. at 469-472.   We affirmed the motion judge's conclusion that

these two factors could have acted in concert to influence the

jury's deliberations, reasoning that the defendant could have

argued that the corrupt detectives' priority was concealing

their own wrongdoing, rather than identifying the killer.      Id.

at 478, 481.
                                                                    18


    This case, too, presents a situation in which a confluence

of factors combined to create a substantial risk of a

miscarriage of justice.

    2.   Confluence of factors.     The motion judge's analysis,

which focuses on whether "justice may not have been done," Mass.

R. Crim. P. 30 (b), aligns with our decisions in the Brescia,

Epps, and Ellis cases.    She considered the unique confluence of

events in light of the totality of the circumstances, that is,

the irregularities in the defendant's interrogation leading to

his confession (including the defendant's neurologic condition)

combined with the new fire science in determining that the

defendant is entitled to a new trial.

    a.   The interrogation.    The voluntariness of the

defendant's statements was thoroughly argued at trial and

considered by the jury.   However, there are substantial

differences between psychosis and DTs that may have made a real

difference in the jury's verdict.    Although psychosis is a

mental disorder that does not necessarily cause cognitive

impairment, DTs is a neurologic disorder with an underlying

physical cause that disrupts the ability to process information

and leaves one disoriented, confused, and highly suggestible.

Because voluntariness was at issue, the jury were required to

determine whether the defendant's statements were voluntary

beyond a reasonable doubt before they were permitted to use them
                                                                   19


in reaching their verdicts.12   See Commonwealth v. Tavares, 385

Mass. 140, 152, cert. denied, 457 U.S. 1137 (1982).   The DTs

diagnosis, with its underlying physical rather than

psychological origin, could have been highly relevant to the

jury's consideration of the voluntariness and reliability of the

defendant's confession -- the most compelling part of the

Commonwealth's case.13   See id. ("a defendant's statement is

usually the key item in the proof of guilt, and certainly one of

overpowering weight with the jury" [quotations and citation

omitted]).   If the jury had concluded that the statements were


     12
       Indeed, it seems evident that the jury were concerned
about the defendant's mental status insofar as they requested
transcripts of the psychiatrists' testimony, which were not
provided.
     13
       This evidence does not fall neatly into one of the
categories usually relied upon to argue for a new trial.
Although the DTs diagnosis was "discoverable," and therefore not
"newly discovered" evidence, we cannot say that defense counsel
was ineffective for failing to discover it. He relied upon the
expertise of others -- three psychiatrists who examined the
defendant while he was in custody opined that the defendant was
psychotic at the times they examined him, one opined only that
he was not suffering from a mental illness at the time of
questioning, and an expert witness retained by the defense
opined that the defendant was psychotic during the interrogation
-- in a field in which the attorney was not himself trained. It
would be a high hurdle indeed to expect counsel to continue to
search for an alternative diagnosis where he reasonably could
not be expected to know that one existed. See Commonwealth v.
Buck, 64 Mass. App. Ct. 760, 764 (2005). This is especially so
where several different psychiatrists concluded that the
defendant had suffered from psychosis either during the
interrogation or after booking, even if the judge was later
persuaded that this diagnosis was incorrect.
                                                                  20


not made voluntarily, then the Commonwealth's case would have

been significantly weakened.

    The defendant's condition was only one part of the problem

with the interrogation.    The motion judge made significant

findings regarding the circumstances surrounding the defendant's

confession.   She credited the interpreter's sworn affidavit in

which he stated that the police officers added their own

accusations about the origin of the fire, e.g., that the

defendant threw a "Molotov cocktail" into the building, into the

statements they prepared for the defendant to sign.    This

significant flaw was compounded by the fact the third, and most

incriminating, statement was not interpreted into Spanish before

the defendant signed it.

    In addition, three of the tactics used during his

interrogation have the potential to elicit false confessions.

See Commonwealth v. Tremblay, 460 Mass. 199, 208 (2011).

Although not newly discovered evidence, we consider these flaws

in evaluating whether justice requires a new trial under the

totality of the circumstances.    See Ellis, 475 Mass. at 480-481.

First, although the defendant said that he had stopped at the

location because he observed the fire and wanted to help people

escape the building, the officers falsely told the defendant

that a witness had placed him at the scene before the fire

began.   See note 4 supra.   Second, the officers motivated the
                                                                      21


defendant to confess; they said that if his friends had caused

the fire, they might blame him, and he would be left "holding

the bag."   Third, the officers engaged in "formatting," meaning

that they told the defendant some corroborating details, which

the defendant then adopted as part of his confession:     that he

acted as a lookout for his friends; that there were three points

of origin for the fire; and that the fire was started with

Molotov cocktails.    These details were later included in the

written statements.   Such tactics are of particular concern

where, as here, a suspect is already suggestible and was never

given a translation of the last, most critical statement.       We

note that the defendant claimed that he had never heard of a

Molotov cocktail before the interrogation.     Until the last

statement, he denied causing the fire and repeatedly stated that

he had sought to save children from the burning building.       The

fact that the defendant was suffering from DTs increased the

possibility of a false confession.

    b.     The fire science.   At trial the defense did not

introduce any testimony to challenge the Commonwealth's arson

experts.    Although the new fire science evidence presented by

the defendant at the hearing on the motion for a new trial

certainly does not prove that the fire was accidental, it does

provide an alternative theory as to cause (accidental, unknown

origin) and explains that the burn patterns alone could not
                                                                   22


prove that flammable liquids were involved.    Thus, additional

sources of evidence were necessary for the Commonwealth to meet

its burden of proving arson.   Had this new fire science evidence

been available at the time of trial it might have changed the

defense strategy.    This new evidence could have provided a basis

for the jury to question further the defendant's confession, as

well as the Commonwealth's evidence regarding how the fire

developed.

    Conclusion.     The loss of eight lives in the fire in 1982

was unquestionably tragic, and without a doubt must have weighed

and must continue to weigh heavily on the victims' families as

well as the community.    Nevertheless, under our Constitution and

system of laws, every criminal defendant is entitled to a fair

trial where, to the extent possible, justice is done.

    The DTs diagnosis, the information from the interpreter,

and the data on coercive interrogation tactics all call into

question whether the defendant's statements were made

voluntarily.   The new fire science provides an alternate theory

regarding the start and spread of the fire.    These factors taken

together could have influenced the jury's verdict.    Although the

evidence presented in support of the defendant's motion for a

new trial does not necessarily mean that he is innocent, the

judge concluded, after what was clearly a painstaking review of

the trial record, that justice was not done.    See Ellis, 475
                                                                   23


Mass. at 460.   We conclude that in reaching this determination,

the judge did not abuse her discretion.   Commonwealth v. Wright,

469 Mass. 447, 461 (2014).   As a result, we affirm her order

granting a new trial.

                                    So ordered.
