May 7, 2023
Due to the continuing consequences of the April 24 cyberattack on automated systems at Lowell City Hall, the only items on the agenda for the May 2, 2023, City Council meeting were those left over from the previous week’s meeting.
One item prompted a vigorous discussion among Councilors. It was a motion by Councilor Erik Gitschier requesting the City Manager “have the Law Department prepare a vote to place a non-binding referendum ballot question regarding zoning for Accessory Dwelling Units (ADUs) for the upcoming election.” Councilor Gitschier explained that this was a very complicated issue but it seemed to him that many residents did not know much about it. He felt that if it was on the ballot, it would create more opportunities to educate the public on the issue before the Council made its decision.
This argument built upon a report of a recent Neighborhood Subcommittee meeting that addressed this issue. Subcommittee Chair Rita Mercier reported that 22 residents attended this meeting with six speaking in favor; nine against; and one not sure which side they were on. Mercier previewed Gitschier’s “more information is needed” argument.
However, on Gitschier’s motion, Councilor John Drinkwater, who has been the main proponent of ADUs on the City Council, pushed back against the referendum idea. He conceded that it is a tough issue, but it’s one this City Council has had before it for nearly a year with four separate meetings of the Joint Zoning/Housing Subcommittee devoted to it. As Drinkwater put it, “No one is going to understand this issue better than the current City Councilors,” adding that the Council frequently votes on amendments to the zoning code that will have widespread impact without first holding referendums. Drinkwater added, “We’re in a housing crisis” and while this is not going to solve it by any measure, it “is one small step to help address the crisis.”
Councilor Wayne Jenness said that in a way, this issue has already been on the ballot. When he campaigned two years ago, he received many questions about how he would increase the city’s housing stock with several people specifically asking about ADUs. In all cases, he replied that he would support them and people elected him as a supporter of ADUs.
Several other Councilors spoke but the remarks of Mayor Sokhary Chau stood out. He observed that Lowell is a collection of neighborhoods and those neighborhoods differ greatly. One of the reasons the city adopted a system of district City Councilors was to give each neighborhood an advocate who understood and cared about the issues that affected the neighborhood they represented. To cede the decision on ADUs to a referendum, even a non-binding one, would work contrary to the intent of the district system. For that reason, he declared the ADU issue was one properly decided by the Council.
After that, Clerk Michael Geary called the roll and only three Councilors – Erik Gitschier, Rita Mercier, and Corey Robinson – voted yes in favor of the referendum. The other eight – John Drinkwater, Wayne Jenness, John Leahy, Vesna Noun, Dan Rourke, Kim Scott, Paul Yem, and Mayor Chau – voted against.
As I understand it, the ADU proposal is with the Planning Board which must hold a public hearing on the proposal and then make a non-binding recommendation to the Council. Whenever the Planning Board does take this up, it will then head back to the City Council for its own Public Hearing and vote. I had assumed that when that happened, the vote by the City Council would be a close one, but if the vote on the referendum is a preview of the final decision – and that’s a big “if” – then it looks like the ADU proposal might pass.
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After the last of the motions were decided on Tuesday, the Council voted to go into Executive Session “to consider and discuss matters of litigation, public discussion of which could have a detrimental effect on the city’s position.” I had no idea what that was about until the next day when it was widely reported that the city of Lowell had agreed to pay $13 million to settle a lawsuit brought by Victor Rosario. Paying $13 million to settle a lawsuit is a big deal, so here’s some background on this case:
At 1 a.m. on March 5, 1982, the Lowell Fire Department responded to a report of fire at 32-36 Decatur Street which was just across Merrimack Street from St. Jean Baptiste Church. When fire fighters arrived, the large wood frame multifamily house was engulfed in flames. Once the fire was out, eight bodies were discovered inside.
Police and fire investigators judged that burn marks inside the house to be consistent with an accelerant being used in multiple places. They concluded the fire had been intentionally set and looked for suspects. Within days, they focused on Victor Rosario and brought him in for questioning. After a night of interrogation, Rosario signed a confession. Months later in a weeklong trial in Superior Court, Rosario was convicted of eight counts of second degree murder and one count of arson of a dwelling. He was sentenced to life in prison.
Rosario maintained his innocence and continuously disputed his conviction. In 2014, lawyers representing him filed a motion for a new trial in Superior Court. Under Massachusetts law, a judge may grant a new trial “any time it appears that justice may not have been done.”
In the motion hearing, Rosario’s lawyers presented two clusters of what they deemed newly discovered evidence. One dealt with the circumstances of the interrogation that yielded the confession; the other with recent advances in “fire science.”
During his interrogation, Rosario had exhibited signs of mental illness which continued and worsened after he had been arrested. When he was later examined by a medical professional, Rosario was diagnosed as being psychotic. However, in the 2014 motion for a new trial, defense attorneys presented expert testimony that Rosario was not psychotic at the interrogation but was instead experiencing delirium tremens, commonly called DTs, which is a severe form of alcohol withdrawal. The expert witnesses said this distinction was significant in Rosario’s case because DTs created confusion and hallucinations, something significant in determining the voluntariness of his confession.
Also related to the interrogation, defense attorneys presented an affidavit from the person who served as the Spanish interpreter during the questioning. This person said that the first two versions of the confession were written in English but read back to Rosario in Spanish before he signed, but that the third version, the most incriminating of them and the one introduced at trial, had not been read to him in Spanish before he signed it.
As for the “fire science” argument, defense attorneys presented expert testimony that up until about 2005, the type of burn marks present in this case were deemed to have been caused by accelerants. However, scientific advances since 2005 had established that those marks were likely caused by a “flashover” which, as I understand it, is the explosive ignition of oxygen and other gases generated by the fire as opposed to the burning of some tangible object like a piece of furniture. The fire experts in 2014 testified that the only way to reliably detect the use of an accelerant in a fire investigation is through chemical analysis, not through visual examination of a burned area (as was done in the Rosario investigation).
The judge hearing the motion, who was not the trial judge who I assume had retired by then, granted a new trial to Rosario, mostly on the basis of the new expert testimony about the DTs. The Middlesex District Attorney’s office appealed that decision and the case ended up before the Supreme Judicial Court.
The SJC released its decision on May 11, 2017, upholding the motion judge’s decision to grant a new trial. The SJC cited the combination of the DTs testimony, the interpreter’s affidavit, and the evolved understanding of fire behavior as reasons for that outcome. The following is from the SJC decision:
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. We conclude that in reaching this determination, the judge did not abuse her discretion. As a result, we affirm her order granting a new trial.
Four months later, Middlesex DA Marian Ryan announced that due to the passage of time and a number of witnesses being unavailable, her office would drop the case rather than hold a new trial.
After spending 32 years in prison, Rosario was released. In 2019, he filed a lawsuit in the U.S. District Court in Boston against a number of individual police officers who were involved in his prosecution and against the city (which was also obligated to defend the city employees). The suit contained multiple claims of violations of 42 U.S. Code section 1983, which is a federal law that allows individuals to sue state and local government officials for violations of their constitutional rights. It provides a way for an individual to seek compensation for damages caused by the government’s infringement of their rights. In his complaint, Rosario cited the “unconstitutional interrogation techniques” and “fabricated evidence” as the cause of his allegedly wrongful decision.
Now, four years after the suit was filed, the city has agreed to pay Rosario $13 million to settle the case. To pay that amount, the city and its lawyers must have felt that Rosario had a substantial chance of success at trial and that the city’s potential liability was even greater than the amount of the settlement. Now that the case has been resolved, I would expect there by some type of public report that shares more information about this outcome.
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On Saturday, May 20, 2023, Lowell Cemetery will host a Veterans Tour of the cemetery to recognize and remember those who served in the military forces of the United States. Rather than a standard tour led by a single guide, this tour will have volunteer guides positioned at each of 12 graves from 10am to noon. Tour-goers will receive an annotated map when they arrive and may then proceed at their own pace to the various graves. Tour-goers may enter the cemetery at either the Knapp Ave or Lawrence Street gates.
Here are the names of the veterans whose graves are on this tour:
Henry and Edward Abbott – two brothers killed in action in the Civil War
Oliver Moulten Chadwick – a World War I pilot with the Lafeyette Escadrille
George Scott Finneral – A Navy helicopter crewmember who died during Desert Storm
Charles Jasper Glidden – served in Army in WWI; first person to drive a car around the world
Winfield Hird – A peacetime journalist killed in China with the US Army Air Force
Walker Lewis – A Black Civil War sailor whose family home was an Underground Railroad stop
George Marden – Civil War sharpshooter who founded the Lowell Courier
John McFarland – Civil War sailor awarded Medal of Honor
Emma Miner – served in US Navy during World War II
Moses Greeley Parker – Civil War army surgeon at battle of Petersburg; leader in telephone business
John Jacob & Edith Nourse Rogers – Spouses; members of Congress; he served in Army in WWI; she helped found the VA and the GI Bill
Freeman Shedd – Civil War hospital attendant; wealthy business owner; philanthropist
Katherine Thyne – US Navy veteran; killed in line of duty with Newport News Police Dept
In addition, the Lowell Historical Society will have a display of Civil War artifacts and other items of interest in the cemetery’s Talbot Memorial Chapel which is part of this tour.
So again, the tour is Saturday, May 20, between 10am and noon. It’s free and requires no advance registration.