New trial in 2004 landlord killing

BOSTON (State House News Service) - In a ruling that a defense lawyer said could reverberate in future criminal trials, the state’s high court on Monday threw out the conviction of a Lowell man found guilty of stabbing his landlord more than 100 times.

The Supreme Judicial Court ruled that the judge who presided over the case – Middlesex Superior Court Judge Kenneth Fishman - provided “flawed” instructions to a jury about drug use and mental illness. The SJC returned the matter to the Middlesex court for a new trial, and Middlesex County District Attorney Gerard Leone indicated he intended to retry the case.

The defendant, Nino DiPadova, was convicted of the first-degree murder of Nancy Carignan in 2004, despite contending that he was in a state of hallucination brought on by severe mental illness, including bipolar disorder with “psychotic features,” posttraumatic stress disorder, and attention deficit hyperactivity disorder. The effects of those illnesses, including hearing voices in his head, were exacerbated, according to the defense, by cocaine use.

DiPadova told police after his arrest that he had no “consciousness” of committing the murder, but acknowledged that he and the victim were the only two in the room when the murder occurred.

DiPadova’s defense counsel said he shouldn’t be held criminally liable for the crime because he “lacked the substantial capacity at that time both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law,” according to the Supreme Judicial Court ruling.

Prosecutors, relying on the testimony of a psychiatrist, countered that DiPadova appeared to use hallucinated voices as an excuse for “objectionable behavior,” and that he attempted to cover up the stabbing, betraying knowledge that his actions were wrong.

The case – decided by Justices Margot Botsford, Fernande Duffly, Ralph Gants, Roderick Ireland and Francis Spina – was initially prosecuted by Martha Coakley, who was Middlesex County district attorney until 2007, when she began to her first term as attorney general. Her successor, Gerard Leone, said he is still examining the SJC ruling, but intends to retry the case.

“The Commonwealth maintains that Nino DiPadova deliberately stabbed the victim in this case over 100 times during an unprovoked attack and will continue to pose an extreme threat to public safety if he were to be released,” Leone said in a statement. “While we are still examining the SJC’s decision, we fully intend to re-try this case and hold Nino DiPadova accountable for the murder of Nancy Carignan.”

At issue is an instruction offered by Middlesex Superior Court Judge Fishman, in which he explained to jurors the standards for determining whether DiPadova had criminal responsibility for his actions. In particular, Fishman told the jury to consider whether DiPadova’s “mental disease or defect was activated by the voluntary consumption of drugs.”

“The judge did not provide any further instructions on the interaction between voluntary consumption of drugs and a mental disease or defect,” Botsford wrote in the SJC ruling, concluding that the instruction may have misled the jury to believe that DiPadova was aware that his drug use would worsen the symptoms of his mental illness.

Although there was evidence presented indicating that DiPadova knew his symptoms were exacerbated by drugs, the SJC ruled that the instruction may have prejudiced the jury against him.

“In these circumstances, the defendant was entitled to an instruction informing the jury that, if his mental illness alone had caused him to lack criminal responsibility at the time of the murder, any drug use that increased or aggravated his condition did not negate his lack of criminal responsibility,” Botsford wrote.

Botsford explained in the ruling that a defendant is criminally responsible when substance abuse interacts with mental illness only if “his mental condition alone, prior to the consumption of the drugs, did not render him criminally irresponsible; and (2) he knew or reasonably should have known that this consumption would cause him to lose substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law.”

Boston attorney Kevin Nixon, DiPadova’s counsel before the SJC, said the ruling could have broader implications for the way juries are instructed in matters of substance abuse and mental illness. As a result of the case, the SJC agreed to amend the court’s 12-year-old model jury instructions regarding criminal liability and substance abuse to help judges navigate cases that involve a mixture of mental illness and drug use.

“The SJC should be commended for seeing the importance of doing what they did here. Their model instructions simply weren’t adequate,” Nixon said. “It was, of course, the right thing to do because otherwise the jury following these instructions would have believed that Mr. DiPadova forfeited his right to a criminal responsibility acquittal