September 17, 2004 Chelsea man to get new trial in '81 slaying conviction By Jonathan Saltzman, Globe Staff Twenty-one years after Angel S. Toro was sentenced to life in prison for murdering a Howard Johnson's clerk in Dorchester during a holdup, a judge tossed out the conviction yesterday and granted him a new trial. In a courtroom with about 20 of Toro's relatives and friends, several of whom blew kisses, Superior Court Judge Mitchell J. Sikora Jr. granted a Suffolk County prosecutor's request to vacate the conviction, because Boston police did not provide Toro with an investigative report that suggested another possible suspect. A homicide detective discovered the document in a police file about six weeks ago. The May 1, 1981, report said a Revere man shot and killed by a pharmacist during a robbery of a Malden drugstore the day before ''fits the general description" of the man wanted for fatally shooting Kathleen Downey on Easter Sunday at the Howard Johnson's Motor Lodge. Authorities said police, in an apparent oversight, did not turn over the report to Toro. Sikora said it ''arguably constituted an important lead" in the Downey murder case, which ''turned very much on the issue of identification" of the gunman by eyewitnesses. After Sikora vacated the conviction, Toro, clad in blue jeans and a designer denim shirt, grinned broadly at his wife of many years, Debra, and hugged his lawyer, Stephen Hrones. Relatives of Downey, an English instructor at Worcester State College who was working part time as a desk clerk, did not attend the hearing or respond to requests for an interview relayed by the Suffolk district attorney's office. Toro, 51, of Chelsea, is the 10th Suffolk County defendant wrongfully convicted since 1996, said David Procopio, a spokesman for District Attorney Daniel F. Conley. Some were exonerated, he said, while others received unfair trials. Since 1982, at least 23 prisoners in Massachusetts have been freed based on new evidence that they were wrongfully convicted, according to the New England Innocence Project, which specializes in using DNA testing to reverse errant convictions. The wrongful convictions have undermined confidence in the criminal justice system and spurred reforms. Assistant District Attorney Dennis H. Collins, who filed the motion acknowledging that ''justice may not have been done" at Toro's 1983 murder trial, said prosecutors wanted three weeks to decide whether they will retry Toro. Collins called the recently discovered report ''exculpatory" but disagreed with Hrones's characterization that it was ''highly exculpatory." Indeed, Collins said, the detective who discovered the 23-year-old report, Wayne Rock, recently obtained two family snapshots of Pasquale Cardone, the man who was shot and killed by the pharmacist. Collins said the photographs of the long-haired, mustachioed Cardone did not appear to match the description of Downey's killer. ''We beg to differ," said Hrones, rising to his feet. Hrones, who has represented four wrongfully convicted defendants in Suffolk County since 2000, including Toro, said he thought the snapshots closely resembled eyewitness descriptions of Downey's murderer and a police artist's sketch of the gunman. Hrones said he was ''greatly disappointed" that prosecutors didn't immediately drop the first-degree murder charge against Toro. But Sikora cut him off, saying both sides could make arguments at a hearing scheduled for Oct. 5. Two eyewitnesses who were at the Howard Johnson's the night of Downey's murder are both dead, Hrones said. A divorced couple from Pennsylvania testified in Suffolk Superior Court on Aug. 9 that they had lied about how Toro, an acquaintance, had looked a couple of days after Downey was slain. They said law enforcement officials from Boston and Pennsylvania pressured them to say Toro had been clean-shaven, when, in fact, he had a neatly groomed beard. By several accounts, Toro's appearance immediately after the crime was important, because the eyewitnesses testified that Downey's killer had no beard. But even if Suffolk prosecutors decide against retrying Toro, he will not be freed immediately . The admitted cocaine dealer is also serving a sentence of three years to life for a murder conviction in Florida. The sentence, Debra Toro said, stemmed from a plea agreement that enabled Toro to avoid the death penalty. Still, Hrones said he hoped Florida's parole board would order that Toro be released, in part because he had been wrongly imprisoned in Massachusetts. Debra Toro said a now-deceased Boston detective, Arthur Linsky, had a vendetta against her husband. He had arrested him previously and had framed him in Downey's murder, she said. Last month, after Rock discovered the crucial police report, Kathleen M. O'Toole, appointed Boston police commissioner earlier this year, said in a statement that she can't comment on police practices two decades ago. But, she said, she has ''every confidence that our homicide unit and their practices and procedures today are very professional." Rock attended yesterday's hearing. Debra Toro said she thanked him and calling him ''the only honest police officer" to work on the Downey case. © Copyright 2004 Globe Newspaper Company.