New trial sought in couple's slaying,

Former FBI agent challenges evidence

By Jonathan Saltzman, Globe Staff  |  February 10, 2005

   

    Eighteen years ago, three Boston-area men were convicted of fatally shooting a Lynnfield couple in the basement of their Main Street home as their two young children slept upstairs, a brazen crime that sent shock waves through the quiet, prosperous suburb.

    Richard Costa, Dennis Daye, and Michael DeNictolis are each serving two consecutive life sentences without the possibility of parole for the 1985 slaying of Robert Paglia and his wife, Patricia, in a robbery at the couple's house.

But now a lawyer for the men is seeking a new trial in Essex Superior Court on the basis of an explosive allegation: A retired FBI agent says in an affidavit that a former colleague gave false and misleading testimony at the trial.

William A. Tobin, a former chief forensic metallurgist at the FBI Laboratory in Quantico, Va., alleges that John P. Riley, a lab examiner who specialized in bullet analysis, had no scientific basis to say that bullet fragments recovered from Patricia Paglia's body matched a metal fragment found in a New Hampshire house where the defendants had allegedly stayed. In closing arguments, prosecutors called Riley's testimony crucial to the case.

''For 18 years now, these defendants have served a natural life sentence for a crime they didn't commit," said the men's lawyer, Rosemary Curran Scapicchio, who filed her motion Monday. Scapicchio called the bullet evidence ''the linchpin that hooked the defendants to the crime."

    A longtime critic of the FBI's bullet-matching technique who retired from the FBI in 1998, Tobin coauthored a law review article in 2003 critical of such evidence, which has been used in thousands of criminal cases across the country over the past 30 years.

    Scapicchio, who has handled two of the defendants' three previous unsuccessful motions for a new trial, said she believes Tobin's affidavit provides ''overwhelming evidence of misconduct by the FBI" and necessitates a court hearing as soon as possible.

    John Dawley, the first assistant Essex district attorney, said he had not had time to review the motion and declined to comment. Riley has retired, according to the FBI, which declined to give his whereabouts. Special Agent Ann Todd, a spokeswoman for the FBI lab in Quantico, would not comment on the case.

Robert Paglia -- described by police and Scapicchio as a drug dealer -- and his wife were slain on Jan. 6, 1985, in what then-Essex District Attorney Kevin M. Burke called one of the most coldly calculated killings his office had investigated.

    Daye and Costa, Burke said, went to the couple's house on a Sunday afternoon. Daye was wearing a Boston police uniform and Costa said he was an agent from the federal Drug Enforcement Administration, Burke said.

The two men shot the couple to death, Burke said, and then foraged through the home. About 22 hours later, a baby sitter arrived and found the bodies. The couple's 18-month-old daughter and 4-month-old son were found unharmed lying on their parents' bed upstairs.
    The breakthrough in the investigation came when Karen Moodie, an admitted heroin addict, came forward to say that her boyfriend, Costa, and Daye committed the robbery and that DeNictolis was the getaway driver. She was the only witness to directly link them to the slayings.
    But in an affidavit filed in 2001 by Scapicchio and Earle C. Cooley, the lead lawyer for the three defendants at trial, Moodie recanted portions of her testimony. Nonetheless, a Superior Court judge denied the motion for a new trial.

The new motion focuses on what prosecutors described in closing arguments as the key forensic evidence: testimony by Riley that the .38-caliber bullet fragments in Patricia Paglia's body matched those from the basement of a Rye, N.H., home, where Moodie said the defendants held target practice. Riley testified that he had relied on established FBI methods, Scapicchio said.

    A year ago, the National Research Council, an arm of the prestigious National Academies, released a study commissioned by the FBI that cast doubts on the reliability of the bureau's bullet-analysis methods. The study concluded that the bureau's bullet examiners have often overstated the value of the evidence in court and downplayed the likelihood of a false match. The report specifically cites Riley's testimony in the Paglia case as an example.

    Tobin, who is now being paid as a consultant by Scapicchio, was one of 18 independent specialists who reviewed the document before its release.

Cooley said this week that if Riley's testimony was incorrect, the three men deserve a new trial. ''No man should be convicted on the basis of the FBI bootstrapping junk science into admissible evidence --particularly when you're dealing with the crime of first-degree murder," he said.

    After learning about the council's report, Scapicchio said, she contacted Tobin and sent him a transcript of Riley's testimony and that of a defense witness who had testified that bullet fragments found in Paglia's body could not reliably be matched to the fragment recovered from the cellar of the New Hampshire house.

Tobin, who said he worked with Riley in the FBI lab but did not supervise him, said in his affidavit that bullet analysts in the bureau at the time were aware of an Atomic Energy Commission study showing the limitations of such comparisons. Nonetheless, Tobin said, Riley testified that the fragments matched, testimony ''in contradiction to FBI Laboratory practice."

    Asked why Riley might have testified so definitively, Tobin said in an interview that ''when one functions as an expert witness for so long, it's easy to get carried away and not be cognizant of the boundaries of proper science."